{ "id": 2803920, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Manuel CHAVEZ, Defendant-Appellant", "name_abbreviation": "State v. Chavez", "decision_date": "1966-10-24", "docket_number": "No. 7817", "first_page": "79", "last_page": "85", "citations": [ { "type": "official", "cite": "77 N.M. 79" }, { "type": "parallel", "cite": "419 P.2d 456" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "203 Or. 697", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2432558 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/or/203/0697-01" ] }, { "cite": "75 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5373612 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/75/0537-01" ] }, { "cite": "93 A.L.R. 1506", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "38 N.M. 383", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559069 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/38/0383-01" ] }, { "cite": "119 A.L.R. 174", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "196 A. 168", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 0 }, { "cite": "74 N.M. 642", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2805520 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/74/0642-01" ] }, { "cite": "40 N.M. 367", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842073 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/nm/40/0367-01" ] }, { "cite": "377 S.W.2d 215", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10158748 ], "pin_cites": [ { "page": "221" } ], "opinion_index": 1, "case_paths": [ "/sw2d/377/0215-01" ] }, { "cite": "37 Cal. Rptr. 925", "category": "reporters:state", "reporter": "Cal. Rptr.", "opinion_index": 1 }, { "cite": "226 Cal.App.2d 305", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2136876 ], "opinion_index": 1, "case_paths": [ "/cal-app-2d/226/0305-01" ] }, { "cite": "365 U.S. 753", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170815 ], "weight": 3, "year": 1964, "opinion_index": 1, "case_paths": [ "/us/365/0753-01" ] }, { "cite": "76 N.M. 111", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8500657 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/76/0111-01" ] }, { "cite": "75 N.M. 537", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5373612 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/75/0537-01" ] }, { "cite": "40 N.M. 367", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842073 ], "weight": 4, "opinion_index": 1, "case_paths": [ "/nm/40/0367-01" ] } ], "analysis": { "cardinality": 698, "char_count": 13522, "ocr_confidence": 0.658, "pagerank": { "raw": 5.346202120255819e-07, "percentile": 0.9433225643657217 }, "sha256": "91fa5e1d8ede3687e7c64075b29454fe07389a5d7277a58fa6cd157cd4419193", "simhash": "1:974fad4b492498cb", "word_count": 2226 }, "last_updated": "2023-07-14T20:38:38.028708+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CHAVEZ and NOBLE, JJ., concur.", "CARMODY, C. J., concurs." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Manuel CHAVEZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nE. T. HENSLEY, Jr.,' Chief Judge, Court of Appeals.\nThe appellant was indicted by a grand jury, charging him with violating \u00a7 54-7-14, N.M.S.A.1953. A petit jury returned a verdict of guilty.\nThe appellant contends that \u00a7 54-7-14, N.M.S.A.1953, being Chapter 145, Laws of 1935, is a general statute relating to narcotic drugs. The appellant further contends that \u00a7 54-5-14, N.M.S.A.1953, being Chapter 97, Laws of 1935, is a specific statute dealing with marijuana. The appellant would have the conviction reversed because of the conclusion reached in State v. Blevins, 40 N.M. 367, 60 P.2d 208.\nThe defendant in the Blevins case was charged with having violated the provisions of \u00a7 35-1617, Comp.St.1929, being a statute prohibiting and declaring it a criminal offense for any person to knowingly sell any property of another. The legislature had prescribed the penalty for a violation of this statute to be imprisonment for not less than one year nor more than ten years. The defendant Blevins contended that since he was charged and convicted of the offense of selling one neat cattle, the property of another, that he should have been prosecuted under \u00a7 35-2405, Comp.St.1929.\nThe statute just referred to, so far as material, reads:\n\u201cAny person who shall steal, embezzle, or knowingly kill, sell, drive, lead', or ride away, or in any manner deprive the owner of the. immediate possession o'f any neat cattle, horse, mule, sheep, goat, swine, or ass; * * * shall be deemed guilty of a felony, and on conviction thereof in any court of competent jurisdiction shall be punished by imprisonment not less than one year nor more than five years, * *\nIn State v. Blevins, supra, we held that the generai statute is not operative as to the special kinds of property described in the special statute and that, consequently, the defendant should have been prosecuted under \u00a7 35-2405.\nHere we are confronted with a different situation. Section 54\u20145-14, N.M.S.A.1953, is a statute dealing with marijuana only. Section 54-7-14, N.M.S.A. 1953 is a statute relating to narcotic drugs. Both statutes were originally enacted by the same legislature in 1935. The statute relating to narcotic drugs has been amended by subsequent legislatures, and the amendment in 1953 specifically mentioned the word \u201cmarijuana.\u201d See \u00a7 54-7-15, N:M.S.A.1953.. Further, in State v. Romero, 74 N.M. 642, 397 P.2d 26, where a defendant was charged with . unlawful possession of a narcotic drug, to-wit, cannabis indica, also known as marijuana, and the .proof at the trial'was limited to marijuana, we held that there was not.a fatal variance. In short, we concluded that marijuana was a narcotic 'drug. Thus, we now hav.e two statutes prohibiting traffic in marijuana; Since they both deal 'with the same subject, they are in pari materia. This is the first distinction to be noted in this and in the case of State v. Blevins, supra.\nThe purpose of the \u201cpari materia\u201d rule is to ascertain and carry into effect the legislatures\u2019 intention. Dupont et al. v. Mills et al., 9 W.W.Harr. (Del.) 42, 196 A. 168, 119 A.L.R. 174.\nThe fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature. In re Vigil\u2019s Estate, 38 N.M. 383, 34 P.2d 667, 93 A.L.R. 1506. It would seem obvious that the legislature in 1953, by amending the narcotic act to include the narcotic drug marijuana did so with a full knowledge of the earlier act, and apparently intended to make the narcotic act controlling. The difference between this case and State v. Blevins is clearly discernible and State v. Blevins can give no comfort to the appellant here.\nWhile the instant appeal was pending, we \u25a0 announced the decision in Aragon v. Cox, 75 N.M. 537, 407 P.2d 673. In that case, we arrived at a conclusion that was not necessarily germane to the issue involved and which we now revise. In Aragon v. Cox, supra we concluded that where both statutes condemn certain conduct the state has a choice in selecting the statute to be ' employed in a prosecution for violation. \u2022 We no longer subscribe to that view which would permit the law enforcement authorities to subject one person to the possibility of a greater punishment than another who has committed an identical act. This would do violence to the equal protection clauses of our state and federal constitutions.\nWe now say that the two statutes where they condemn the same act are in pari materia. The penalty provisions being different, they are irreconcilable. See State v. Pirkey (1955), 203 Or. 697, 281 P.2d 698. The legislature, having amended \u00a7 54-7-15, N.M.S.A.1953, being Chapter 146, Laws of 1961, that being the penalty provision following \u00a7 54-7-14, and not having amended the penalty provisions following \u00a7 54-5-14, N.M.S.A.1953, impliedly intended that its last expression would control. Accordingly, we hold that the prosecution here was properly conducted under the applicable statute.\nSecondary matters urged by the appellant as grounds for reversal are deemed to be without merit and further reference herein would serve no useful purpose. The conviction and sentence appealed from should be affirmed.\nIt is so ordered.\nCHAVEZ and NOBLE, JJ., concur.", "type": "majority", "author": "E. T. HENSLEY, Jr.,' Chief Judge, Court of Appeals." }, { "text": "MOISE, Justice\n(dissenting).\nThe opinion' of the majority turns on the proposition that \u00a7 -54\u20145-14, N.M.S.A. 1953, and \u00a7 54-7-14, N.M.S.A.1953,- are in pari materia and both deal with m\u00e1rijuana, and since the last pronouncement by the legislature was its amendment of \u00a7 54-7-15, N.M.S.A.1953, being the penalty provision applicable to \u00a7 54-7-14, supra, it must have been intended to make the penalties there provided controlling. Based on this reasoning, it is concluded that the prosecution in the instant case was conducted under the proper statute. I cannot agree.\nTo my mind, the form and history of the pertinent sections of the law are important in considering their application and the legislative intent. Both were first enacted in 1935. Sections 54\u20145-14 and 54\u2014 5\u201415, N.M.S.A.1953, were passed as Ch. 97, N.M.S.L.1935, the title to which act reads:\n\u201cAn Act Prohibiting the Possession, Sale, Barter or Giving Away of Cannabis Indica, Also Known as Hashish and Marijuana; and Also Prohibiting .the Planting and Cultivation of the Same and Providing Penalties Hereof.\u201d\nSection , 54-5-15, N.M.S.A.1953, _ was amended in 1953 by Ch. 24, N.M.S.L.1953, so as to increase the penalty for violation of. \u00a7 54\u20145-\u00cd5,' supra.\nSection 54-7-14, N.M.S.A.1953, was passed-as.\u00a7 14, Ch. 145, N.M.S.L.1935. The' \u2022title to \"the act-stated\" it was \u201cAn Act Relating \"to Narcotic Drugs, and Providing \u2022Penalties for Violations of this Act.\u201d Although \u201ccannabis\u201d was defined in \u00a7 2(14), Ch. 145, N1M.S.L.1935, neither cannabis nor-marijuana were included within the definition of \u201cnarcotic drugs\u201d contained in \u00a7 2(15) of the Act. However, in' 1937, by Ch. 70, N.M.S.L.1937, the definition of \u201cnarcotic drugs\u201d was amended to include \u201ccannabis.\u201d In 1953, by Ch. 25, N.M.S.L. 1953 (compiled as \u2022 \u00a7 54-7-15, N.M.S.Av 1953), the penalties for unlawful sale,; possession or delivery of narcotic drugs ^including cannabis) were increased. Again in 1959 and 1961 the penalties were changed.\nIt is my view that the applicable rules'\u201dof statutory construction as considered and announced in State v. Blevins, 40 N.M. 367, 60 P.2d 208, are controlling here. 'In that' case, the defendant was charged with and convicted of selling * * * . one-neat .cattle of the property of R. L. Durham, without having any right to sell .the same, contrary to the provisions of Section 35-1617, New Mexico Statutes Annotated, 1929, Compilation.\u201d On . appeal, it -was argued that defendant had been prosecuted under the wrong section of the law. . Section 35-1617, supra, under which the case was prosecuted, made it. a felony to. sell or knowingly offer to sell \u201cany property of which he is not \"the owner, of which\u2019he has hot been given-the right to sell.\u201d - It was urged that' prosecuti\u00f3ri should' hive been under \u00a7 35-2405, Comp.Stat.1929, which made it a felony to \u201csteal,- embezzle, or knowingly kill, sell, drive, lead, or -ride away, or in any manner deprive-the owner of the' immediate possession of any neat cattle, horse, mule, sheep, goat, swine, or ass; * * This court held that \u00a7 35-2405 and \u00a7 35-1617 both condemned the same act,' and concluded that in such circumstance the special act applicable to livestock generally and neat cattle in particular was the only one under which the defendant could be prosecuted. I quote f-rom the opinion:\n\u201cWe start with the premise that both acts condemn the same offense. A conviction under one statute could be pleaded as former jeopardy against a subsequent prosecution under the other statute. If this conclusion be correct, it renders absolutely certain the premises assumed.\n\u201cThe question then arises: Does the state have a choice in the matter of initiating prosecutions for the sale of chattel property of the kind and description named in the special statute, section 35-2405 ? We conclude that it does not. In 59 C.J. 1056, at section 623 under the subject \u2018Statutes,\u2019 the rule is stated as follows : \u2018Where there is one statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent leg'islative policy; but to the extent of any necessary repugnancy between them, the special statute, or th\u00e9 one'dealing with\"the common subject matter in a minute way, will prevail over the general statute, unless it appears that the legislature intended to \u2018 make the general act controlling; and this is true a fortiori when the special act is later in point of time, although the rule is applicable without regard to the respective dates of passage. It is a fundamental rule that -where the general statute, if standing alone, would include the same matter as the sp.eciajr act, and thus conflict with it, the special act will be considered as an exception to the general statute, whether it was passed before or after such general enactment. Where the special statute is later, it will be regarded as an exception to, or qualification of, the prior general one; and where the general act is later, the special statute will be construed as remaining an exception to its terms, unless it is repealed in express words or by necessary implication.\u2019\n* * * * * *\n\u201cHere, in so far as each statute indicts sale of the property of another, they describe but one offense, and, one of such statutes being special and the other general, the special statutes should control to the extent of compelling the state to prosecute under it. In other words, the general statute is not operative as to the special kinds of property described in the special statute.\u201d\n\u25a0' In- the instant -case, \u00a7 54-7-14, supra,provides that whoever shall \u201chave in his posession a narcotic drug, (cannabis) with intent ulawfully to sell and deliver such drug, * * * \u201d or \u201cunlawfully sells, furnishes, gives away, or delivers any narcotic drug in violation of the provisions of this act * * * \u201d is to be punished as provided in \u00a7 54-7-15, supra. At the same time, \u00a7 54-5-14, supra, makes it unlawful \u201cto possessj plant, cultivate, produce, sell, barter or give away any cannibis [cannabis] indica, also known as hashis [hashish] and marijuana * * At least, insofar as possession with intent to sell or give away, and selling and giving away of cannabis or marijuana, the two sections proscribe the identical acts. It is my considered opinion that insofar as possession and selling or giving away of cannabis or marijuana are offenses under \u00a7 54-5-14, supra, that section is a special act applicable to marijuana and must prevail over the provisions of the general narcotics act, \u00a7 54-7-14, supra. This is in accord with my understanding of State v. Blevins, supra, and I cannot follow the majority\u2019s efforts to distinguish it. We have recently reaffirmed the rule in State v. Lujan, 76 N.M. 111, 412 P.2d 405. Neither do I think that legislative intent to' make 'the general act controlling can be found in the. simultaneous amendment of the two acts, even though the amendment of the narcotics act was placed in the statute book immediately following the amendment to the special marijuana act. I find no \u201cexpress words\u201d or \u201cnecessary implication\u201d present to bring about such a result. In the quotation from State v. Blevins, supra, it is stated that this is the requirement to - reach a contrary conclusion. I would direct attention to the following cases from other jurisdictions in which the rule is expounded. Bulova Watch Co. v. United States, 365 U.S. 753, 81 S.Ct. 864, 6 L.Ed.2d 72; People v. Fiene (1964), 226 Cal.App.2d 305, 37 Cal. Rptr. 925; City of Irving v. Dallas County Flood Control Dist. (Tex.Civ.App.1964), 377 S.W.2d 215, 221.\n- I agree with what is said by the majority conc\u00e9rning Aragon v. Cox, 75 N.M. 537, 407 P.2d 673, but because of their views that prosecution under \u00a7 54-7-14, supra, and punishment under \u00a7 54-7-15, supra, were proper, I respectfully dissent. The case should be reversed.\nCARMODY, C. J., concurs.", "type": "dissent", "author": "MOISE, Justice" } ], "attorneys": [ "J. E. Gallegos, Santa Fe, for appellant.", "Boston E. Witt, Atty. Gen., -Thomas A. Donnelly, James V. Noble, Asst. -Attys. Gen.; Santa Fe, for appellee." ], "corrections": "", "head_matter": "419 P.2d 456\nSTATE of New Mexico, Plaintiff-Appellee, v. Manuel CHAVEZ, Defendant-Appellant.\nNo. 7817.\nSupreme Court of New Mexico.\nOct. 24, 1966.\nJ. E. Gallegos, Santa Fe, for appellant.\nBoston E. Witt, Atty. Gen., -Thomas A. Donnelly, James V. Noble, Asst. -Attys. Gen.; Santa Fe, for appellee." }, "file_name": "0079-01", "first_page_order": 111, "last_page_order": 117 }