{
  "id": 5333630,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Lloyd COVENS, Defendant-Appellant",
  "name_abbreviation": "State v. Covens",
  "decision_date": "1971-10-01",
  "docket_number": "No. 702",
  "first_page": "175",
  "last_page": "177",
  "citations": [
    {
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      "cite": "83 N.M. 175"
    },
    {
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      "cite": "489 P.2d 888"
    }
  ],
  "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."
  },
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    {
      "cite": "80 N.M. 269",
      "category": "reporters:state",
      "reporter": "N.M.",
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      "opinion_index": 0,
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    {
      "cite": "79 N.M. 516",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        2737642
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      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nm/79/0516-01"
      ]
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    {
      "cite": "58 N.M. 404",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        1587696
      ],
      "weight": 2,
      "year": 1954,
      "opinion_index": 0,
      "case_paths": [
        "/nm/58/0404-01"
      ]
    },
    {
      "cite": "40 N.M. 173",
      "category": "reporters:state",
      "reporter": "N.M.",
      "case_ids": [
        8841589
      ],
      "weight": 3,
      "year": 1936,
      "opinion_index": 0,
      "case_paths": [
        "/nm/40/0173-01"
      ]
    }
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  "analysis": {
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  "last_updated": "2023-07-14T17:09:20.437308+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "SUTIN and COWAN, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Lloyd COVENS, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\n'WOOD, Chief Judge.\n.Convicted of \u201cunlawful use of marijuana,\u201d defendant appeals. He contends: (1) no crime was charged; (2) the term \u201cunlawful use\u201d is void for vagueness; and (3) the admission of two marijuana cigarettes into evidence was not relevant to an \u201cunlawful use.\u201d\nWhether a crime was charged.\nThe information charged defendant with \u201c . . . Unlawful Use of Marijuana, a violation of Section 54-7-51, . . . .\u201d N.M.S.A.1953 [Repl.Vol. 8, pt. 2, Supp. 1969 (repealed Laws 1971, ch. 245, \u00a7 13)]. Section 54 \u2014 7-51, supra, stated penalties for unlawful use of marijuana but did not define the offense of \u201cunlawful use.\u201d Unlawful use is declared an offense in \u00a7 54-7-50, N.M.S.A.1953 (Repl.Vol. 8, pt. 2). The 1971 amendment to \u00a7 54-7-50, supra, is not involved. See Laws 1971, ch. 245, \u00a7 8. Because the statutory reference was to the penalty section and not to the section establishing the crime, defendant asserts he was not charged with a crime and the charge against him should be dismissed. We disagree.\nSection 41-6-7(1) (b), N.M.S.A. 1953 (Repl.Vol. 6) states an information is valid and sufficient if it states \u201c * * * so much * * * of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged.\u201d When the information charged defendant with unlawful use of marijauna it charged defendant with enough of \u00a7 54-7-50, supra, to give defendant notice of the offense intended to be charged.\nDefendant asserts, however, that the reference to \u00a7 54 \u2014 7-51, supra, is fatal to the information; that a statutory reference in an information is required to be accurate, regardless of the provisions of \u00a7 41-6-7, supra. He relies on State v. Anderson, 40 N.M. 173, 56 P.2d 1134 (1936). State v. Anderson, supra, was sufficiently distinguished in Smith v. Abram, 58 N.M. 404, 271 P.2d 1010 (1954) so as not to be applicable. State v. Holly, 79 N.M. 516, 445 P. 2d 393 (Ct.App.1968) specifically held that where the allegations in an information were sufficient (as here) to charge the offense under \u00a7 41-6-7, supra, a statutory misreference did not make the information fatally defective.\n\"Unlawful use\u201d as being void for vagueness.\nSection 54-7-50, supra, does not define \u201cunlawful use.\u201d Defendant asserts that this term, being undefined, is vague and uncertain and, therefore, violates the requirements of due process. Compare State v. Minns, 80 N.M. 269, 454 P.2d 355 (Ct.App.1969). The answer to this claim is that \u00a7 54-7-50, supra, makes all use of marijuana unlawful unless the use comes within one of the exceptions stated in that section. Since no claim is made that any of the exceptions are in any way involved, the applicable portion of \u00a7 54-7-50, supra, reads: \u201c* * * the use of marijuana is unlawful * * We see no constitutional vagueness in this unqualified prohibition on the use of marijuana.\nRelevancy of two marijuana cigarettes to unlawful use.\nTwo undercover agents (a State Policeman and a City of Roswell detective) testified that a number of people were at a residence in Alamogordo. One of the persons present had a plastic bag containing three or four hand rolled cigarettes and some loose material. The cigarettes were taken from the bag and smoked by those present, including the defendant. Other cigarettes were rolled from the loose material in the bag, and placed on a table. Some of these were also smoked. The two cigarettes admitted into evidence were taken from the table. They contained marijuana.\nDefendant asserts these two cigarettes should not have been admitted. He points out that he was not charged with \u201cpossession\u201d of marijuana but with \u201cunlawful use.\u201d He argues that the cigarettes were not relevant to the charge of \u201cunlawful use\u201d because these two cigarettes had never been used. He uses \u201cirrelevant\u201d in the sense of \u201cno logical relationship to the facts in issue.\u201d\nThe relevancy, the logical relationship between the facts in issue and the two cigarettes, is as follows: defendant smoked a cigarette made up from the loose material in the plastic bag. The cigarettes in question were also made from the loose material in the plastic bag. Defendant \u201cused\u201d a cigarette made from the same material as the cigarettes in question. The cigarettes in question contained marijuana. They were, therefore, relevant to the question of defendant\u2019s use of marijuana, and were properly admitted.\nThe amended judgment and sentence is affirmed.\nIt is so ordered.\nSUTIN and COWAN, JJ., concur.",
        "type": "majority",
        "author": "'WOOD, Chief Judge."
      }
    ],
    "attorneys": [
      "F. Randolph Burroughs, Fettinger & Burroughs, Alamogordo, for appellant.",
      "David L. Norvell, Atty. Gen., James H. Russell, Jr., Asst. Atty. Gen., Santa Fe, for appellee."
    ],
    "corrections": "",
    "head_matter": "489 P.2d 888\nSTATE of New Mexico, Plaintiff-Appellee, v. Lloyd COVENS, Defendant-Appellant.\nNo. 702.\nCourt of Appeals of New Mexico.\nOct. 1, 1971.\nF. Randolph Burroughs, Fettinger & Burroughs, Alamogordo, for appellant.\nDavid L. Norvell, Atty. Gen., James H. Russell, Jr., Asst. Atty. Gen., Santa Fe, for appellee."
  },
  "file_name": "0175-01",
  "first_page_order": 301,
  "last_page_order": 303
}