State v. Ortiz

• Court: Court of Appeals of New Mexico
• Writing for the Court: OMAN
• Citation: State v. Ortiz, 433 P.2d 92, 78 N.M. 507, 1967 NMCA 19 (N.M. App. 1967)
• Decision Date: 06 October 1967
• Docket Number: No. 53,53
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Candido ORTIZ, Defendant-Appellant.

Page 92

433 P.2d 92

78 N.M. 507

STATE of New Mexico, Plaintiff-Appellee, v. Candido ORTIZ, Defendant-Appellant.

No. 53.

Court of Appeals of New Mexico.

Oct. 6, 1967.

Certiorari Denied Nov. 1, 1967.

G. Gordon Robertson, Raton, for appellant.

Boston E. Witt, Atty. Gen., Paul J. Lacy, Asst. Atty. Gen., Santa Fe, for appellee.

OPINION

OMAN, Judge.

Defendant was tried and convicted on two separate counts of possession of marijuana under § 54--7--13, N.M.S.A.1953 (Repl.1962). He contends, and we agree, that the sole question presented is whether or not he could have been guilty of the offense with which he was charged and convicted, when the uncontroverted evidence shows that he was engaged in cultivating and growing marijuana.

Some weeks prior to May 27, 1966, Mr. Jimmy Jimenez, and undercover agent for the Narcotics Division of the New Mexico State Police, went to Raton to assist the State Police in the investigation of possible marijuana activities in that area. He became acquainted with defendant, and on May 27, 1966, he introduced defendant to Officer James Sedillo of the New Mexico State Police, Narcotics Division. Jimenez introduced Sedillo as his brother.

While driving around in an automobile, Sedillo made inquiry of defendant concerning possible sources from which marijuana could be purchased.

On June 4, 1966, Sedillo returned to Raton, and on this occasion Jimenez delivered to him a cardboard box containing marijuana seeds, which had been given to Jimenez by defendant for delivery to Jimenez' 'brother.' Later in the day Sedillo met defendant, and defendant inquired as to whether Jimenez had delivered the marijuana seeds. Sedillo acknowledged having received them from Jimenez.

Defendant then stated that he had planted some identical seeds a short distance from Raton, and that he had a small 'plantation' growing. He expressed a willingness to let Sedillo have some of the plants, and he took Sedillo and Jimenez to his 'plantation,' which consisted of two or three short rows of growing marijuana plants.

They dug up three of these plants, which were placed in a coffee can and given to Sedillo.

Some time later defendant transplanted from his 'plantation' into other cans some of the growing marijuana plants, which were found in his home at the time of a search conducted on the morning of June 18, 1966.

In count 1 of the information he was charged with possession of marijuana on or about June 4, 1966, and in count 2 with possession of marijuana on or about June 18, 1966. As above stated, he was tried and convicted on both counts.

His position during the trial and on this appeal is that he was a 'manufacturer' within the contemplation of § 54--7--13, N.M.S.A.1953 (Repl.1962), and, thus, was not subject to the criminal prohibition against possession of marijuana under this section of our statutes, which provides:

'Unlawful possession.--Whoever, not being a manufacturer, wholesaler, physician, veterinarian, dentist, nurse acting under the direction of a physician, or an employee of a hospital or laboratory acting under the direction of its superintendent or official in immediate charge, or a common carrier or messenger when transporting any drug mentioned herein between parties hereinbefore mentioned in the same package in which the drug was delivered to him for transportation, is found in possession thereof, except by reason of an order or prescription lawfully and properly issued shall be punished as hereinafter provided.'

Section 54--7--2, N.M.S.A.1953 (Supp.1967) provides in part:

'Definitions.--As used in the Uniform Narcotic Drug Act (54--7--1 to 54--7--49):

'* * *

'F. 'Manufacturer' means a person who by compounding, mixing, cultivating, growing or other process, produces or prepares narcotic drugs, but does not include an apothecary who compounds narcotic drugs to be sold or dispensed on prescription;'

There is no doubt that on June 4 and on June 18, the dates when defendant is charged with unlawful possession of a narcotic drug, to wit, marijuana, he was producing the drug by cultivating and growing the same.

In his brief he has stated:

'* * * Appellant (defendant) readily concedes that the evidence would have justified a conviction of various offenses under the Narcotic Drug Act. (Sections 54--7--1 to 54--7--51, N.M.S.A.1953 (Repl.1962)) The point is that it does not justify a conviction of the offense on which the State elected to proceed"

Our Narcotic Drug Act was enacted in 1935, and, insofar as this appeal is concerned, no material legislative changes have been made therein since its enactment. The Uniform Narcotic Drug Act published and recommended by the National Conference of Commissioners on Uniform State Laws, after which our Act was patterned, contains no provisions comparable to §§ 54--7--13 to 15, N.M.S.A.1953 (Repl.1962). Section 15 is a penalty provision, which imposes much greater penalties for violations of §§ 13 and 14 than are provided by the general penalty provisions of the Act for violations of other sections.

The State argues that the entire Act must be construed together, and because § 54--7--4 N.M.S.A.1953 (Repl.1962) prohibits the production of narcotic drugs by manufacture, cultivation, growing, or any other process, unless the person so producing the same shall have first obtained a license to so do from the State Board of Public Health, the context of § 13 requires that it be read as meaning: 'Whoever, not being a duly licensed manufacturer, * * *.'

The contention is that the 1935 Legislature failed by oversight to insert the words 'duly licensed.' Although conceding that the Supreme Court of New Mexico has consistently held that criminal and penal statutes are to be strictly construed (State v. Shop Rite Foods, Inc., 74 N.M. 55, 390 P.2d 437 (1964); State v. Buford, 65 N.M. 51, 331 P.2d 1110, 82 A.L.R.2d 787 (1958); United States v Santistevan, 1 N.M. 583 (1874), the State contends that under the language of Exparte De Vore, 18 N.M. 246, 136 P. 47 (1913) the word 'manufacturer' is open to interpretation, and particularly to the interpretation of 'duly licensed manufacturer.' In Ex parte De Vore it was stated that penal statutes 'are not to be subjected to any strained or unnatural construction in order to work exemptions from their penalties,' and that '(s)uch statutes must be interpreted by the aid of the ordinary rules for the...