State v. Romero

• Decision Date: 23 November 1964
• Docket Number: No. 7497,7497
• Citation: 74 N.M. 642,1964 NMSC 245,397 P.2d 26
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. John Robert ROMERO, Defendant-Appellant,
• Court: New Mexico Supreme Court

Page 26

397 P.2d 26

74 N.M. 642

STATE of New Mexico, Plaintiff-Appellee, v. John Robert ROMERO, Defendant-Appellant,

No. 7497.

Supreme Court of New Mexico.

Nov. 23, 1964.

Earl E. Hartley, Atty. Gen., Wayne C. Wolf, James v. Noble, Asst. Attys. Gen., Santa Fe, for appellee.

Zinn & Donnell, Santa Fe, for appellant.

CARMODY, Justice.

Having been found guilty by a jury of unlawful possession of narcotic drugs, the defendant appeals.

The questions raised are purely legal ones, and there is no necessity in relating the facts.

The information charged a violation of Sec. 54-7-13, N.M.S.A.1953, 'in that the said defendant did have in his possession, unlawfully, certain narcotic drugs, to-wit, cannabis indica, also known as marijuana.' The proof at the trial was that the substances found in the possession of the defendant were 'marijuana,' and there was no other testimony identifying the substance by its true botanical name. Neither was there any testimony as to the chemical breakdown or grouping of the substance. It should be noted, however, that the proof was that the substance consisted of leaves and seeds, but not the mature stalk.

The statute under which the defendant was charged (Sec. 54-7-13, supra) provides as follows:

'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 superintendment 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.'

Of necessity, the reference in the above section requires a consideration of a prior section of the statute containing definitions, and we find that the provisions of Sec. 54-7-2, N.M.S.A.1953, insofar as pertinent here, are:

'* * *

'(14) 'Cannabis' includes all parts of the plant cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake.

'(15) 'Narcotic drugs' means coca leaves, opium, and cannabis, and every substance neither chemically nor physically distinguishable from them.

'* * *' (Emphasis added.)

The defendant urges that there was a fatal variance between the proof offered and the allegations of the information. This contention is upon the theory that the substance having been identified only as 'marijuana,' there was no evidence of a violation of the statute absent proof of possession of cannabis sativa L. In advancing this argument, defendant relies upon the literal meaning of Sec. 54-7-2(14), supra, and seems to ignore completely the words in Sec. 54-7-2(15), supra, following the word 'cannabis.' As we read the two definitions, subsection (14) is not intended as an entire definition of 'cannabis' but only as an addition or extension of the word. When the legislature used the word 'includes' in subsection (14), it certainly had some other meaning in mind than the word 'means' in subsection (15). Compare Harris v. State, 1937, 179 Miss. 38, 175 So. 342. Thus subsection (15) is the controlling definition here involved, and subsection (14) was intended merely as a limitation or specification of the word 'cannabis.'

We also take note of Sec. 54-7-40, N.M.S.A.1953, which sets forth the forms of pleading which may be used in complaints, informations or indictments under the Narcotic Drug Act. Included in these forms is the following:

'Unlawful possession.--That A. B. did have in his possession unlawfully certain narcotic drugs, to wit, morphine, (cocaine, heroin, or the name of the drug as it is commonly known).' (Emphasis added.)

The information in this case used the recommended form, and, additionally, specified the section claimed to have been violated and identified the type of drug as it is commonly known. Certainly, at least in this part of the United States, the word 'marijuana' is the name by which the drug 'cannabis' is most well known. It would unnecessarily lengthen this opinion to enter into a discussion or to quote at length from the various medical legal dictionaries which point out the similarity of identity of cannabis sativa L., cannabis, cannabis indica, hashish, and others, including marijuana with its diverse spellings; suffice it to say that apparently all the authorities are in accord with the definition of 'cannabis' given in Schmidt's Attorneys' Dictionary of Medicine:

'Cannabis (kan'a-bis). The dried flowering tops of the Indian or American hemp plant Cannabis sativa, known popularly as marihuana, hashish, and bhang. It is used widely as a smoking material for its exhilarating effects which include exhaltation, morbid gaiety, a sense of unnatural well-being, etc.'

And in Black's Law Dictionary, 4th ed., the following appears:

'MARIGUANA, MARIHUANA, MARIJUANA.

"Mariguana' is an annual herb, cannabis sativa, having angular rough stem and deeply lobed leaves. The bast fibres of cannabis are the hemp of commerce. A drug prepared from 'cannabis sativa,' designated in technical dictionaries as 'cannabis' and commonly known as amrijuana, mariahuans, marajuana, maraguana, or marihuana, in Southern and Western states. * * *'

See also Gould's Medical Dictionary, 2d ed., and Stedman's Medical Dictionary, unabridged lawyers' ed.; see also State v. Navaro, 1933, 83 Utah 6, 26 P.2d 955, for a discussion of all of the various terms and the differences in spelling of 'marijuana.'

We conclude as a matter of law that marijuana is identical with cannabis, cannabis sativa L., and cannabis indica. Marijuana and cannabis indica are merely geographical oriented names of cannabis, whereas cannabis sativa L. is the botanical name of cannabis.

State v. Benavidez, 1962, 71 N.M. 19, 375 P.2d 333, strongly relied upon by the defendant, has...