STATE V. ORTIZ, 1967-NMCA-019, 78 N.M.
507, 433 P.2d 92 (Ct. App. 1967)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
CANDIDO ORTIZ, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1967-NMCA-019, 78 N.M. 507, 433 P.2d 92
Appeal from the District Court of
Colfax County, McIntosh, Judge.
Petition for Writ of Certiorari Denied
November 1, 1967
BOSTON E. WITT, Attorney General, PAUL J.
LACY, Asst. Atty. Gen., Attorneys for Appellee.
G. GORDON ROBERTSON, Raton, New Mexico,
Attorney for Appellant.
OMAN, Judge, wrote the opinion.
Waldo Spiess, J., Joe W. Wood, J.
{1} 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.
{2} Some weeks prior to May
27, 1966, Mr. Jimmy Jimenez, an 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.
{3} While driving around in
an automobile, Sedillo made inquiry of defendant concerning possible sources
from which marijuana could be purchased.
{4} 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.
{5} 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 of three short rows of growing
marijuana plants.
{6} They dug up three of
these plants, which were placed in a coffee can and given to Sedillo.
{7} 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
{*509} search conducted on the morning of June
18, 1966.
{8} 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.
{9} 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."
{10} 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;"
{11} 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.
{12} 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"
{13} 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.
{14} 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,..."
{15} 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,
{*510} 1 N.M. 583 (1874),
the State contends that under the language of Ex parte DeVore,
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 DeVore 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 construction of statutes, and with the
cardinal object of ascertaining the intention of the Legislature. * * *"
However, it is also stated that "[t]he intention, of course, must be the
intention expressed in the statute, and where the meaning of the language
employed is plain, it must be given effect."
{16} If the language of a
statute renders its application absurd or unreasonable, it will be construed
according to its obvious spirit or reason. State v. Nance,
77 N.M. 39,
419 P.2d
242 (1966); Martinez v. Research Park, Inc.,
75 N.M. 672,
410 P.2d 200 (1965).
But, as quoted above from Ex parte DeVore, where the meaning of the language is
plain, it must be given effect, and there is no room for construction. Martinez
v. Research Park, Inc., supra; State v. Shop Rite Foods, Inc., supra; State v.
Thompson,
57 N.M. 459,
260 P.2d 370 (1953); Hendricks v. Hendricks,
55 N.M. 51,
226 P.2d 464 (1950). Here the language is plan and unambiguous, and a reading
into the statute of the words "duly license" is not required to avoid
any ambiguity or any unreasonable or strained construction.
{17} Courts will not add
words in the construction of a statute, except where it is necessary to do so
to make the statute conform to the obvious intent of the Legislature, or to
prevent absurdity. State v. Nance, supra. If there be any ambiguity or doubt
concerning the meaning of a criminal statute, it will be construed against the
State which enacted it and in favor of the accused. State v. Couch,
52 N.M.
127,
193 P.2d 405 (1948).
{18} The State further argues
that in any event the defendant was in possession of marijuana seeds on June 4,
that the possession of these seeds "was quite apart and distinct from the
possession of growing marijuana plants," and, therefore, he was still
properly found guilty under count 1 of the information in accordance with the
decision in State v. Giddings,
67 N.M. 87,
352 P.2d 1003 (1960).
{19} The case of State v.
Giddings, supra, in no way involved the question of exemption of the defendant
from the provisions of § 13 by reason of his being a "manufacturer,"
which is the sole question presented in this case. Here it is unquestioned that
defendant was a "manufacturer" as expressly defined in the Act, and
the context of the Act, and in particular the context of § 13, requires no use
of the term in any sense other than that expressly given it by the definition.
Section 13 simply says: "whoever, not being a manufacturer,... is found in
possession" of a drug shall be punished. It in no way suggests that
possession of a drug by a "manufacturer," which possession is not
incidental or necessary to the manufacture of the drug, is a violation of the
provisions of § 13. However, as above shown, defendant was a
"manufacturer" of marijuana on June 4, as well as on June 18, by
reason of his being a grower and cultivator thereof, and seeds are certainly
incidental and necessary to the growing and cultivation of the marijuana plant.
{20} It follows from what has
been said that the trial court erred in denying the defendant's motion for a
directed verdict. The cause should be remanded with directions to discharge the
defendant and to dismiss the information and the charges contained therein.
Waldo Spiess, J., Joe W. Wood, J.