State v. Olive
| Decision Date | 12 September 1973 |
| Docket Number | No. 1103,1103 |
| Citation | 1973 NMCA 131,515 P.2d 668,85 N.M. 664 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. William D. OLIVE, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
The defendant was convicted of possession of marijuana weighing more than eight ounces in violation of § 54--11--23(B)(3), N.M.S.A.1953 (1972 Interim Supp.), a fourth degree felony. He sets out four points of error on this appeal all revolving around a single issue--whether the marijuana found in his possession was properly weighed.
We affirm.
Defendant was arrested for possession of marijuana after police officers observed him in the yard of a private home with some plants in his hand which the officers identified as green marijuana plants. The plants were seized and immediately sent to a laboratory in Albuquerque where they were positively identified as marijuana and weighed. The testimony of the chemist indicates that the plants were in substantially the same condition when he weighed them in Albuquerque as when defendant was arrested, that is, the plants had not dried out. The laboratory weight of the plants was in excess of eight ounces.
At trial defendant offered evidence by an expert witness that the weight, some two and one-half months after the original weighing, was 'approximately' four ounces. The defendant contended that the weight of the dried plants was the weight to be used under § 54--11--23(B)(3), supra, because marijuana is usable as a stimulant only in the dried state. The state's expert testified that marijuana did not necessarily have to be dry to be usable. The trial court ruled that it interpreted the statute to mean the weight at the time of the offense and not at some subsequent time.
On this appeal defendant argues that (1) the state did not carry its burden of proof in showing the weight of the marijuana because of the discrepancy between green and dried plants, (2) that the trial court committed reversible error in refusing defendant's offer of proof on the issue of weight, (3) that the statute applied to defendant in the context of the green-dried problem violates principles of equal protection and due process, and (4) that the statute is void because of the vagueness inherent in the weight issue.
We find no merit in any of defendant's contentions. Section 54--11--23(B)(3), supra, states in pertinent part:
'Any person who violates this section with respect to:
'(3) eight (8) ounces or more of marijuana is guilty of a fourth degree felony. . . .'
The definition section of the Controlled Substances Act, § 54--11--2(O), N.M.S.A.1953 (1972) Interim Supp.), defines marijuana as
(Emphasis ours)
Moreover, we are required to give force and effect to each and every portion of a statute, State v. Sublett, 78 N.M. 655, 436 P.2d 515 (Ct.App.1968), and to assume that the legislature used no surplus words in its enactment of the Controlled Substances Act. Cromer v. J.W. Jones Conset. Co.,79 N.M. 179, 441 P.2d 219 (Ct.App.1968). The language of the statute shows that it applies with equal force to the 'growing plant' as well as to dried marijuana and various derivative products of the plant. The legislature intended to prohibit both the cultivating and the use of the plant. We are required to give common sence interpretations to statutes. Bettini v. City of Las Cruces, 82 N.M. 633, 485 P.2d 967 (1971). A common sense interpretation of § 54--11--23(B)(3), supra, read in conjunction with § 54--11--2(O), supra, requires that the weight of eight ounces mentioned in § 54--11--23(B)(3), supra, be interpreted to mean the weight of the plant, or the plant's derivative products, weighed in the form seized whether that form be the green plant, the dried plant or the various products which may be derived from the plant. To hold that the weight of seized marijuana may only be computed...
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Arnold v. State
...denied, 84 N.M. 560, 505 P.2d 1236 (1973). Our courts are required to give common sense interpretations to the statutes. State v. Olive, 85 N.M. 664, 515 P.2d 668 (1973), cert. denied, 85 N.M. 639, 515 P.2d 643 (1973). Based upon these rules of statutory construction it is reasonably clear ......
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State v. Smith
...relationship to a legitimate state end. Therefore it is not unconstitutional. Id. at 605, 260 N.W.2d at 326. In State v. Olive, 85 N.M. 664, 515 P.2d 668 (App.1973), the court was asked to interpret the New Mexico statute which made it a crime for a person to possess eight ounces or more of......
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State v. Doe
...the foregoing charge? The legislature is presumed not to have used any surplus words and each word has a meaning. State v. Olive, 85 N.M. 664, 515 P.2d 668 (Ct.App.1973). If § 13-14-28(A), supra, is to be interpreted as meaning to cover instances of adults in magistrate court, then the enti......
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