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    "judges": [
      "HENDLEY and HERNANDEZ, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Jerry Allen MABREY, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nWOOD, Chief Judge.\nThe question is whether defendant\u2019s conviction for intentional distribution of marijuana is barred on the basis of double jeopardy. He was convicted of violating \u00a7 54-11-22(A), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1973). He claims the conviction is barred by the double jeopardy provision of N.M.Const., Art. II, \u00a7 15 because he had been previously tried on a charge of violating \u00a7 54-11-20(A), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1973).\nIt is not disputed that two prosecutions have occurred; it is not disputed that both prosecutions were based on the same sale of marijuana. Defendant contends that whether the \u201csame evidence\u201d or \u201csame transaction\u201d test is applied, he has twice been placed in jeopardy. See State v. Tanton, 88 N.M. 5, 536 P.2d 269 (Ct.App.1975), presently before the Supreme Court on Writ of Certiorari granted June 2, 1975.\nThe State agrees with defendant\u2019s conclusion of double jeopardy. It agrees that the two prosecutions were based on the same incident. The State\u2019s concession seems to be based on the view that defendant was placed in jeopardy in the first trial because that trial terminated after a jury was empaneled and sworn, and testimony was taken.\nWe agree that the State\u2019s approach is the correct one and that the question is whether defendant was placed in jeopardy in the first proceeding. If placed in jeopardy in that first proceeding, we would then have to consider on what basis the first proceeding was terminated. There was no jury verdict in the first proceeding ; the \u25a0 trial court granted defendant\u2019s motion to dismiss for failure to prove a violation of \u00a7 54-11-20, supra. Only after considering the basis for termination of the first proceeding would we reach defendant\u2019s \u201csame evidence\u201d and \u201csame transaction\u201d arguments.\nAlthough we agree with the State\u2019s approach, we do not agree with the State\u2019s conclusion. Defendant was not placed in jeopardy in the first proceeding. Two separate lines of New Mexico decisions support this result. Before discussing those decisions, it is pertinent to point out what was charged in each of the prosecutions.\nIn the first prosecution defendant was charged with .intentionally trafficking in marijuana in violation of \u00a7 54-11-20, supra. The applicable portion of the statute was \u00a7 54-11-20 (A) (2), supra, which defines \u201ctraffic\u201d to mean the \u201cdistribution, sale, barter or giving away any controlled substance enumerated in Schedules I or II which is a narcotic drug\u201d. Marijuana is a Schedule I controlled substance. Section 54 \u2014 11\u20146(C) (10), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1973). Defendant sold marijuana. However, the controlled substance sold must have been a narcotic drug. \u201cNarcotic drug\u201d is defined in terms of opium, opiates, coca leaves and their salts, compounds, isomers, derivatives and chemical equivalents. \u201cMarijuana\u201d is defined separately, Section 54-11-2, N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1973), paragraphs (O) and (P). Schedule I does not list marijuana with opiates or opium derivatives; marijuana is listed with the hallucinogenic substances. Compare paragraphs (A), (B) and (C) of \u00a7 54-11-6, supra. Marijuana is not a narcotic drug under the above statutes.\nBecause marijuana is not a narcotic drug under the above statutes, \u00a7 54-11-20(A)(2), supra, does not make it a criminal offense to sell marijuana. The statute which does not make defendant\u2019s sale a criminal offense was the statute under which he was charged and convicted in the second proceeding, \u00a7 54-11-22(A), supra.\nBecause \u00a7 54-11-20, supra, does not make it a crime to sell marijuana, the charge in the first proceeding did not charge defendant with a public offense. One line of New Mexico decisions holds that where a defendant is not charged with a public offense, proceedings after a plea to that non-charge does not place a defendant in jeopardy. State v. Ferguson, 56 N. M. 398, 244 P.2d 783 (1952); State v. Ar-dovino, 55 N.M. 161, 228 P.2d 947 (1951); State v. Valdez, 51 N.M. 393, 185 P.2d 977 (1947).\nA person may not be punished for a crime without a sufficient charge even if he voluntarily submits himself to the jurisdiction of the court. Smith v. Abram, 58 N.M. 404, 271 P.2d 1010 (1954). If there is no proper charge against a defendant, the court lacks jurisdiction. State v. Chacon, 62 N.M. 291, 309 P.2d 230 (1957). The jurisdiction lacking is jurisdiction over a cause. Compare Smith v. Abram, supra. Because there was no proper charge, the court lacked jurisdiction in the first proceeding. A second line of New Mexico decisions holds that if jurisdiction was lacking in the first proceeding, there' is no basis for a claim of double jeopardy. Trujillo v. State, 79 N.M. 618, 447 P.2d 279 (1968); State v. Paris, 76 N. M. 291, 414 P.2d 512 (1966); State v. Goodson, 54 N.M. 184, 217 P.2d 262 (1950).\nEach line of New Mexico decisions \u201cprotects the societal interest in trying people accused of a crime, rather than granting them immunization because of legal error at a previous trial . . . .\u201d United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). On the authority of those decisions, we hold that defendant was not placed in jeopardy in the first proceeding and there is no basis for the claim of double jeopardy. Alexander v. Delgado, 84 N.M. 717, 507 P.2d 778 (1973).\nThe authority of the New Mexico decisions, in our opinion, has not been weakened by certain decisions of the United States Supreme Court. Those decisions hold the prohibition against double jeopardy bars a retrial after an acquittal under a defective charge. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); compare dissenting opinion in Duncan v. Tennessee, 405 U.S. 127, 92 S.Ct. 785, 31 L.Ed.2d 86 (1972). The difference, in our opinion, is between a charge that is sufficient to support a conviction, although defective, and a charge so deficient that there could not be a legal conviction. See State v. Davis, 61 N.J.Super. 536, 161 A.2d 552 (1960). Here, the first proceeding was under an information that did not state a public offense and was so defective that a legal conviction could not result. Compare Smith v. Abram, supra, and Ex parte Williams, 58 N.M. 37, 265 P.2d 359 (1954).\nIn Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973) the indictment contained a defect which could not be cured by amendment. Because of this defect a mistrial was declared. Defendant was reindicted, tried and convicted. The opinion holds that the trial court did not err in declaring a mistrial and conviction at a subsequent trial was not barred by double jeopardy. In this case, the information in the first proceeding could not have been amended because Rule of Criminal Procedure 7(a) prohibits amendments which charge an additional or different offense. Since no offense had been charged, an amendment to charge an offense would necessarily have been an additional offense. Compare State v. Padilla, 86 N.M. 282, 523 P.2d 17 (Ct.App.1974). Because no offense was charged in the first proceeding its termination was consistent with the mistrial in Somerville. Defendant\u2019s trial and conviction under a proper charge was not double jeopardy.\nOral argument is unnecessary. The judgment and sentence are affirmed.\nHENDLEY and HERNANDEZ, JJ., concur.",
        "type": "majority",
        "author": "WOOD, Chief Judge."
      }
    ],
    "attorneys": [
      "Leo C. Kelly, Albuquerque, for defendant-appellant.",
      "Toney Anaya, Atty. Gen., Jay F. Rosen-thal, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "539 P.2d 617\nSTATE of New Mexico, Plaintiff-Appellee, v. Jerry Allen MABREY, Defendant-Appellant.\nNo. 1823.\nCourt of Appeals of New Mexico.\nAug. 6, 1975.\nLeo C. Kelly, Albuquerque, for defendant-appellant.\nToney Anaya, Atty. Gen., Jay F. Rosen-thal, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee."
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