{
  "id": 5320432,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Nick GONZALES, Defendant-Appellant",
  "name_abbreviation": "State v. Gonzales",
  "decision_date": "1967-12-01",
  "docket_number": "No. 54",
  "first_page": "591",
  "last_page": "593",
  "citations": [
    {
      "type": "official",
      "cite": "78 N.M. 591"
    },
    {
      "type": "parallel",
      "cite": "435 P.2d 210"
    }
  ],
  "court": {
    "name_abbreviation": "N.M. Ct. App.",
    "id": 9025,
    "name": "Court of Appeals of New Mexico"
  },
  "jurisdiction": {
    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
  },
  "cites_to": [
    {
      "cite": "78 N.M. 507",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        5324840
      ],
      "weight": 6,
      "opinion_index": 0,
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        "/nm/78/0507-01"
      ]
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  "last_updated": "2023-07-14T21:27:10.359171+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "SPIES S, C. J., and WOOD, J., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Nick GONZALES, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nOMAN, Judge.\nDefendant was tried and convicted of illegal possession of marijuana seeds on June 18, 1966, contrary to the provisions of \u00a7 54\u2014 7-13, N.M.S.A. 1953 (Repl.1962).\nDefendant relies upon three separate points for reversal. We shall consider only his first point, since we are of the opinion that he is entitled to a reversal under this point.\nHis first point is that:\n\u201cOne who cultivates and grows marijuana is a 'manufacturer\u2019 within the meaning of the Narcotic Drug Act; and he may not be convicted of simple possession of marijuana under \u00a7 54-7-13, New Mexico Statutes 1953.\u201d\nThis precise question was presented and ruled on by this court in the case of State v. Ortiz, 78 N.M. 507, 433 P.2d 92, opinion issued October 6, 1967. That case and the present case are related in some of their factual details, but the question as to whether or not the respective defendants were manufacturers of marijuana, as defined in \u00a7 54 \u2014 7-2(F), N.M.S.A. 1953 (Supp. 1967), arises in a somewhat different manner. In the Ortiz case there was no doubt that on June 4 and on June 18, the dates when Ortiz was charged with unlawful possession of a narcotic drug, to wit, marijuana, he-was producing the drug by cultivating and growing the same. The evidence in the present case is before us on a stipulated \u201cStatement of Facts and Proceedings.\u201d\nA,s \u00a7tated above, defendant was convicted of .illegal possession of marijuana seeds on June 18. A small number of marijuana seeds were found by two officers upon removing the back seat of defendant\u2019s car, while making a search of the car.\nOn June 4, 1966, Candido Ortiz, Jimmy Jimenez and Officer James Sedillo were sitting in a parked automobile on the main street of the City of Raton, shortly after their return from the Ortiz \u201cplantation\u201d of marijuana referred to in State v. Ortiz, supra. The defendant drove up and parked behind them. They got out of the car in which they were sitting and went back to defendant\u2019s car, where a brief conversation ensued. In this conversation, the defendant asked and stated to Ortiz: \u201cWhere have yo\u00fa been ? I\u2019ve been looking for you all day to go and water the marijuana plants.\u201d\nOn a subsequent occasion the defendant stated to Jimenez that he was growing marijuana plants in his yard and that he was a co-owner with Ortiz of the \u201cplantation\u201d from which the three growing plants had been removed. These are the three plants which were given to Sedillo by Ortiz as related in State v. Ortiz, supra.\nOne of the court\u2019s instructions to the jury, which is in no way attacked, was:\n\u201cThe court instructs you that it is another essential element of the offense of illegal possession of marijuana that the defendant must have actual knowledge of the presence and of the narcotic character of the object possessed. It is incumbent upon the State to prove that the defendant had such knowledge. The fact, if you find it to be a fact, that particles of marijuana were found in the defendant\u2019s automobile, does not, of itself, justify you in returning a verdict of guilty. Unless you also find to your satisfaction and beyond a reasonable doubt that the defendant had actual knowledge of the presence of such leaves and seeds and also had actual knowledge that they were marijuana, you must find the defendant not guilty.\u201d\nThe State argues that since the seeds were found behind the back seat of defendant\u2019s car, \u201cthe jury was entitled to draw the reasonable and logical conclusion that the appellant [defendant] himself had hidden the marijuana there.\u201d It also argues that from the question asked and statement made to Ortiz and the subsequent statement made to Jimenez:\n\u201cthe jury was entitled to draw the logical and reasonable inference that the Appellant [defendant] was familiar with marijuana, and therefore knew that the material which he had hidden behind the back seat of his automobile was marijuana.\u201d\nEven conceding the State\u2019s contentions to be correct, the question still exists as to defendant\u2019s status as a \u201cmanufac-t'urer.\u201d The evidence, upon which the State relies to establish actual knowledge on the part of defendant that the seeds were marijuana, also unmistakably and necessarily establishes that he was the co-owner, and thus a producer and manufacturer, of the growing plants in the \u201cplantation.\u201d He was also the grower, and thus the producer and manufacturer, of marijuana in his own yard. If this evidence establishes the necessary knowledge on the part of defendant that the seeds were marijuana seeds, then of necessity it establishes that he had to be a grower, producer and manufacturer on June 18, the day the seeds were found in his automobile, or to have been such prior thereto. There is no evidence which even suggests that he had previously been a grower, producer and manufacturer, but had ceased to be such before June 18.\nHe clearly falls within the definition of manufacturer as set forth in \u00a7 54 \u2014 7-2 (F), N.M.S.A. 1953 (Supp.1967), which is as follows:\n\u201c54 \u2014 7-2. Definitions. \u2014 As used in the Uniform Narcotic Drug Act [54-7-1 to 54-7-49]:\n******\n\u201cF. \u2018Manufacturer\u2019 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\nSince he was a \u201cmanufacturer,\u201d he was not subj'ect to the criminal prohibition against possession of marijuana under \u00a7 54\u2014 7-13, N.M.S.A. 1953 (Repl.1962). State v. Ortiz, supra.\nThe State further argues that the evidence showing defendant was growing marijuana did not compel the jury to conclude that the marijuana found behind the seat of his automobile \u201cwas marijuana which had been \u2018manufactured\u2019 by\u201d him. With this we agree, but we rejected a like argument in support of the conviction in State v. Ortiz, supra. The statute simply does not prohibit a \u201cmanufacturer\u201d from being in possession of marijuana which he has not manufactured. In any event, seeds are incidental and necessary to the growing and cultivation, and thus to the manufacture, of the marijuana plant.\nThe trial court erred in denying defendant\u2019s motion for a directed verdict. The case is remanded with instructions to discharge the defendant and to dismiss the information and charges contained therein.\nIt is so ordered.\nSPIES S, C. J., and WOOD, J., concur.",
        "type": "majority",
        "author": "OMAN, Judge."
      }
    ],
    "attorneys": [
      "G. Gordon Robertson, Robertson & Robertson, Raton, for appellant.",
      "Boston E. Witt, Atty. Gen., Paul J. Lacy, Asst. Atty. Gen., Santa Fe, for appellee."
    ],
    "corrections": "",
    "head_matter": "435 P.2d 210\nSTATE of New Mexico, Plaintiff-Appellee, v. Nick GONZALES, Defendant-Appellant.\nNo. 54.\nCourt of Appeals of New Mexico.\nDec. 1, 1967.\nG. Gordon Robertson, Robertson & Robertson, Raton, for appellant.\nBoston E. Witt, Atty. Gen., Paul J. Lacy, Asst. Atty. Gen., Santa Fe, for appellee."
  },
  "file_name": "0591-01",
  "first_page_order": 631,
  "last_page_order": 633
}