State v. Luginbill

• Decision Date: 05 November 1977
• Docket Number: No. 48409,48409
• Citation: 223 Kan. 15,574 P.2d 140
• Parties: STATE of Kansas, Appellee, v. Larry LUGINBILL, Rene C. Cole, and Keith J. Goulet, a/k/a Keith J. James, Appellants.
• Court: Kansas Supreme Court

Page 140

574 P.2d 140

223 Kan. 15

STATE of Kansas, Appellee, v. Larry LUGINBILL, Rene C. Cole, and Keith J. Goulet, a/k/a Keith J. James, Appellants.

No. 48409.

Supreme Court of Kansas.

Nov. 5, 1977.

Syllabus by the Court

1. The definition of marihuana contained in K.S.A. 65-4101(o ) of the Kansas Uniform Controlled Substances Act, enacted in 1972, was intended to include those parts of marihuana which contained the chemical tetrahydrocannabinol, to exclude those parts which do not, and to outlaw all plants popularly known as marihuana to the extent they possess the chemical regardless of the possible existence of more than one species of marihuana.

2. In determining legislative intent, courts are not limited to a mere consideration of the language employed but may properly look to the historical background of the enactment, the circumstances attending its passage, the purposes to be accomplished and the effect the statute may have under the various constructions suggested. (Following State ex rel. Jordan v. City of Overland Park, 215 Kan. 700, Syl. 10, 527 P.2d 1340.)

3. The language of the statutes, K.S.A. 65-4101(o ), K.S.A. 65-4105(d ), and K.S.A. 1973 Supp. 65-4127b, defining and proscribing the possession and sale of marihuana conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice.

4. Whether the appellants were selling agents of the narcotic or merely procuring agents for the buyer was a question of fact to be determined from the evidence by the trier of fact.

5. The record on appeal from judgments convicting the appellants of possession of marihuana with intent to sell is examined and the evidence is held sufficient to sustain the convictions.

David M. Arnold, Wichita, argued the cause and was on the brief for appellant Larry Luginbill.

James M. Glover, Wichita, argued the cause and was on the brief for appellant Keith J. Goulet.

Davis S. Carson, Wichita, argued the cause and was on the brief for appellant Rene C. Cole.

Stephen M. Joseph, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., Vern Miller, Dist. Atty., and Stephen E. Robison, Asst. Dist. Atty., were with him on the brief for appellee.

FROMME, Justice:

The three appellants were convicted at a bench trial of possession with intent to sell a large quantity of marihuana to an undercover agent. The appellants, Larry Luginbill, Rene C. Cole, and Keith J. Goulet, were jointly charged and tried. They join in an appeal to this court but are represented by different attorneys.

In order to understand the first two arguments on appeal some preliminary facts must be developed. The statute in effect at the time of the incident reads:

" 'Marihuana' means all parts of the plant Cannabis sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks, except the resin extracted therefrom, fiber, oil, or cake or the sterilized seed of the plant which is incapable of germination." (K.S.A. 65-4101(o ).)

At trial Linda Lea Morgan Voss, a forensic chemist, testified as to tests she performed on the substance and concluded it was Cannabis sativa L., marihuana, containing tetrahydrocannabinol (THC).

Defense counsel examined Ms. Voss as to the difference in two schools of thought as to classification of marihuana. Ms. Voss testified she followed the monotypic theory of classification, i. e., there is one species of the genus Cannabis, sativa, and there are varieties of that species such as indica, ruderalis, Americus, and Mexicanus, which refer to the locale of growth. The polytypic theory, which she does not subscribe to, is that there is more than one species of the genus Cannabis, which species include sativa, indica and ruderalis. She stated she could not distinguish between the three varieties with the standard tests. She testified different varieties can only be identified in the growing plant. They cannot be identified after the plants are crushed and processed.

The defendants' contention here is that the legislature in K.S.A. 65-4101(o ) did not define marihuana to embrace all Cannabis but only Cannabis sativa L. The defendants argue that this necessarily excludes all other "species" from the statute's proscription.

The defense attorneys cite this court to two cases in their favor (United States v. Lewallen, 385 F.Supp. 1140 (W.D.Wis.1974); United States v. Collier, Crim.N. 43604-73 (Super.Ct.D.C.1974)). However, they neglect to mention that nine of the ten federal circuit courts which have considered this issue have rejected this argument and have held the same language in the Comprehensive Drug Abuse Prevention and Control Act of 1970 was intended to and does include all forms of Cannabis. This includes the 10th Circuit; see United States v. Ludwig, 508 F.2d 140 (10th Cir. 1974). Additionally, more than 20 states with similar language in their state statutes have rejected appellants' argument. We find no clear cases to support appellants' position.

In United States v. Kelly, 527 F.2d 961 (9th Cir. 1976) the court notes some of the holdings of the various circuit courts and continues:

"Faced with this array of authority, and numerous state court decisions to the same effect, Kelly's position finds little support other than United States v. Lewallen, 385 F.Supp. 1140 (W.D.Wis.1974). . . . Of particular significance is the fact that the judge in Lewallen relied principally upon United States v. Collier (March 19, 1974), an unreported Superior Court case from the District of Columbia. That Collier was a slender reed on which to fashion a decision was made clear on March 5, 1975, when the District of Columbia Court of Appeals, sub silentio overruled that decision by reversing four other cases where trial judges had dismissed indictments on the same theory. See United States v. Johnson, D.C.App., 333 A.2d 393 (March 5, 1975), . . . " (pp. 963-964.)

The Lewallen case appears to support defendants' contention. However, it was not appealable and the court of appeals for the 7th Circuit has not finally addressed the issue.

One of the most complete discussions of this issue is found in United States v. Walton, 168 U.S.App.D.C. 305, 514 F.2d 201 (1975). That court noted the defendant's expert testified that, applying the polytypic approach, four species existed other than sativa L. (indica, ruderalis, gigantea, and an Afghanistan species as yet unnamed) but conceded all five contain the toxic agent tetrahydrocannabinol which produces the hallucinogenic or euphoric effects which led to the congressional ban on marihuana. The court, pointing out that the defendant was arguing congress intended to ban the euphoric effects of sativa L. but not those of the other species, reasoned:

" . . . This result seems manifestly unreasonable and furthermore could raise the most serious equal protection problems if it were adopted, i. e. an individual convicted for distribution of sativa L. could state with more than a little justification that no legitimate legislative purpose permits the government to jail persons who obtain a THC "high" from sativa L. but to not prosecute persons who obtain the exact same "high" from another species. Moreover, Walton's expert concedes that at present there is no reliable biochemical or spectrographic method for distinguishing between the various species of marijuana. Thus, unless the government has access to the growing plant, an unlikely situation, it can not at present prove that a given defendant possesses one kind of marijuana or another. It may be that the government has the capacity to develop a method but since Congress did not have the benefit of any such method when it enacted the statute in issue here, one must certainly pause to consider why Congress would enact a law the violations of which could not be proven on the basis of present knowledge. Even if Congress did have such a method, it is apparently conceded that only citizens with expert botanical knowledge could distinguish between the various species of marijuana. This suggests a serious due process question: could the government prosecute an individual for possession of sativa L. when there are no means whereby the average citizen can distinguish between sativa L. and other species to thus conform his conduct to the requirements of the law? It presses us to extremes to hold that Congress would enact a law the violations of which are not detectable to the group of citizens to whom the law is addressed." (168 U.S.App.D.C. pp. 306-307, 514 F.2d pp. 202-203.)

The Walton court then turned to the federal legislative history, noting that although the defendant was convicted under the Controlled Substances Act of 1970, the definition of marihuana there was from the Marijuana Tax Act of 1937. The Walton court stated the legislative history shows that the 1937 definition was intended to include those parts of marihuana containing THC and exclude those which did not. No testimony before congress was found that marihuana was anything but monotypical.

Some of this legislative history of the Federal Drug Abuse Prevention and Control Act (21 U.S.C. § 801, et seq.) is set forth in United States v. Rothberg, 351 F.Supp. 1115 (E.D.N.Y.1972), which was affirmed by the 2nd Circuit in United States v. Rothberg, 480 F.2d 534 (2nd Cir. 1973), cert. den., 414 U.S. 856, 94 S.Ct. 159, 38 L.Ed.2d 106 (1973).

The definition of marihuana in our 1972 Uniform Controlled Substances Act (K.S.A. 65-4101(o )) and the Federal Drug Abuse Prevention and Control Act (21 U.S.C. § 801, et seq.) are virtually identical. The year the ...