United States v. Johnson, 8649.

• Decision Date: 05 March 1975
• Docket Number: No. 8650.,No. 8649.,No. 8654.,No. 8653.,8649.,8650.,8653.,8654.
• Parties: UNITED STATES, Appellant, v. Vernon Hubert JOHNSON, Appellee. UNITED STATES, Appellant, v. Herman L. McRAE, Appellee. UNITED STATES, Appellant, v. Dennis MATUSZEZAK, Appellee. UNITED STATES, Appellant, v. Donald E. JACKSON, Appellee.
• Court: D.C. Court of Appeals

333 A.2d 393

UNITED STATES, Appellant, v. Vernon Hubert JOHNSON, Appellee.

UNITED STATES, Appellant, v. Herman L. McRAE, Appellee.

UNITED STATES, Appellant, v. Dennis MATUSZEZAK, Appellee.

UNITED STATES, Appellant, v. Donald E. JACKSON, Appellee.

No. 8649.

No. 8650.

No. 8653.

No. 8654.

District of Columbia Court of Appeals.

Argued January 15, 1975.

Decided March 5, 1975.

Jeffrey T. Demerath, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, James F. McMullin, Daniel A. DeRose and Bernard J. Panetta, II, Asst. U. S. Attys., were on the brief, for appellant.

David Carey Woll, Rockville, Md., entered an appearance for appellee Johnson in No. 8649.

O. B. Parker, Washington, D. C., was on the brief for appellee Matuszezak in No. 8653.

Michael Rudolph, Washington, D. C., appointed by this court, was on the brief for appellee Jackson in No. 8654.

Before KERN and NEBEKER, Associate Judges, and QUINN, Associate Judge, Retired.

PER CURIAM:

The trial judge upon motion dismissed informations charging each of the appellees with possession of marijuana in violation of D.C.Code 1973, § 33-402(a). This section of our Code proscribes possession of "any narcotic drug", which term is defined in D.C.Code 1973, § 33-401(n) to include "cannabis", and, in turn, "cannabis" is defined as follows:

"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, including specifically the drugs known as American hemp, marihuana, Indian hemp, or hasheesh, as used in cigarettes or in any other articles, compounds, mixtures, preparations, or products whatsoever. . . . (D.C.Code 1973, § 33-401(m).) (Emphasis added.)

The trial court appears to have reasoned that in 1938 at the time Congress enacted the legislation described above, (a) it was well known that there were several species of the cannabis plant, (b) Cannabis sativa L. was but one of these species, and (c) under the familiar rule of statutory construction, "Expressio unius est exclusio alterius", when Congress made possession of only that particular species unlawful it was deliberately excluding from the statute's reach possession of all other species of cannabis.

In sum, it seems to have been the trial court's view that Congress intended that possession within the District of the one kind of cannabis, viz., Cannabis sativa L., be unlawful but that possession of any of the other species of cannabis be lawful. Since the government neither alleged in the information nor offered to prove at trial that appellees possessed Cannabis sativa L., the court concluded the informations must be dismissed.¹

Much the same argument which persuaded the trial court and is now pressed upon this court in these cases has been made in various jurisdictions, both federal and state, and uniformly rejected by appellate courts. See Walton v. United States (D. C.Cir., No. 74-1790, Jan. 23, 1975, slip op. at 6, n. 12).² After reviewing these decisions and the legislative history we are disinclined to become now the minority of one appellate court to accept the so-called "species" argument. Whatever botanists may conclude today concerning whether cannabis is or is not a monotypic genus and what are or are not its various species — a matter of botanical dispute well-nigh constituting a modern day War of Roses³ — and however much the witnesses testifying in 1937 before the Congressional committees may have used interchangeably differing terms to describe the cannabis plant, we are of the view that the Congress of the United States did not intend to carve out one particular species of cannabis,...