No. 12934 INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

THE STATE OF MONTANA ex 

### re1 ALLEN LEMIEUX, County Attorney inand for theCounty of Jefferson, Relator,

THE DISTRICT COURT OF THE FIFTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, inand forthe County of Jefferson, and the HON. FRANK E. BLAIR, Judge thereof, Respondents.

ORIGINAL PROCEEDING: Counsel of Record: For Relator: Allen LeMieux, County Attorney, argued, Boulder,

Montana Richard J. Llewellyn, Boulder, Montana For Respondents: James H. Goetz argued, Bozeman, Montana

Submitted: January 7, 1975 Decided:

### FEB

# -3 

### 1975 Filed: 

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## -3197'5

### Mr. Justice John Conway Harrison delivered the Opinion of the Court. Original Proceeding. This is an application for a writ of supervisory controlby the Jefferson County Attorney to set aside a ruling of the district court of the Fifth Judicial District holding that section 54-132,

### R.C.M. 1947, is unconstitutional. The pertinent facts are not in dispute, they are: On August 

### 8, 1974, leave to file an Informationwas granted by the district court of the Fifth Judicial District charging defendants, PennyMitchell and Richard Mitchell with the criminal sale of dangerous drugs

as specified in section 54-132,

### R.C.M. 1947. On December 16, 1974, a jury trialwas commenced and the state presented evidence that defendants had cultivated approximately 30marijuana plants in their vegetable garden and that a quantity of marijuana seeds and processed marijuana had been seized from defendants' resident pursuant to a search warrant. No evidencewas offered that defendants had ever sold in the ordinary sense of the word, any of the marijuana in question. At 

### the close of the state's case, defendants entered a motion to dismiss the charge of criminal sale of dangerous drugs for the
reason that section 54-132,R.C.M. 1947,was unconstitutional. On December 

### 18, 1974, the district court ruled the statutewas unconsitutionalbecause it created an irrebuttable presumption that a defendant who manufactured, prepared, cultivated,compounded or processed any dangerous drug was guilty of selling the same. Thereupon the criminal proceeding against defendantswas continued and the county attorney petitioned this Court for a writ of supervisory control to set aside the action of the district court in declaring the statute unconstitutional. Section 54-132,R.C.M. 1947,provides in pertinent part:"Criminal saleof dangerous drugs. (a) A person commits the offense of a criminal sale of dangerous drugs ifhe sells, barters, exchanges, gives away, or offers to sell, barter, exchange or give away, manufactures, prepares, cultivates, compounds or processes any dangerous drug as defined in this act.II Defendants argue that section 54-132 offends due process requirements because by its terms, an irrebuttable presumption iscreated that one who cultivates a dangerous drug asdefined intheAct isguilty of selling the same. In support of this contention defendants rely principallyupon Tot v. United States, 319 U.S.' 463, 63 S.Ct. 1241, 87 L ed 1519, 1524. In 

## - Tot the constitutionality of the Federal Firearms Act, 52 Stat. 1250, Ch. 850, 15 U.S.C. !j 902(f), was successfully attacked by the defendant. This Act provided that itwas a crime for any person who had previously been convicted of a crime of violence toreceive any firearmor ammunition that had been shipped through interstate commerce. Section 2(f) of that statutecontains this explicit presumption:

If* 

# ** and the possession of a firearm or ammunition by any such person shallbe presumptive evidence that such firearm or ammunition was shipped or transported or received, asthe case may be, by such person in violation of this chapter. 11 The United States Supreme Court inTot declared the statute 

## - unconstitutional and set forth this test: "Under our decisions, a statutory presumption cannot be sustained if therebe no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other isarbitrarybecause of lack of connectionbetween the two in common experience. ;I Under this test, defendants argue, there isno rational connectionbetween the fact of cultivation of marijuana and the sale of marijuana. We decline to speculate whether such a rational connection existsbecause we do not agree that section 54-132, R.C.M. 1947, creates a presumption. According tothe terms of section 54-132, one isguiltyof the offense of sale of dangerous drugs ifany of the following prohibited criminal activities arecommitted:1) Selling, bartering, exchanging, orgiving away any dangerous drug as defined in the act. 2) Offering to sell, barter, exchange or give away any dangerous drug as defined in the act. 3) Preparing, cultivating, compounding, orprocessing any dangerous drug as defined inthe act. A reading of this statutecompels the conclusion that the legislaturebroadly defined the term "sale" to include the enumerated activities set out by the terms of the statute. Stated in another fashion, the legislature set forth certain activities which areadverse to the public welfare and has broadly labeled these prohibited activities as the "sale" of dangerous drugs. Defendants argue that there are constitutional limitations on the power of the legislature to "stretch" ordinarymeanings in definingwords for statutorypurposes. To support this contention they rely on Calvert v. Zanes-Ewalt Warehouse, Inc., Tex.Civ.App., 1973, 492 S.W.2d 638. The Texas legislature enacted a taxation statute that defined the term "sale" toinclude a theft. In Calvert theTexas Court of Appeals declared the statuteunconstitutional and stated that the statutory definition of the term was strained, contrary to 

### itsordinarymeaning, and so arbitrary that due process had been denied. However, the Texas Supreme Court laterreversed this decision in Calvert v. Zanes-Ewalt Warehouse, Inc., (Texas 1973), 502 S.P.2d 689, and upheld the constitutionality of the statutedespite the fact that the term "sale" was defined ina way that was atodds with itsordinary meaning. The reviewing court found no abuse of due process. Research on the constitutionality of criminal statutes that define terms contrary totheir ordinary, accepted meanings led to People v. Knowles, 

### 35 Cal.2d 175, 217 P.2d 1,

### 4, cert.den. 340 U.S. 879, 71 S.Ct. 117, 95 L ed 639.In Knowles, the California Penal Code 

### 5 209, was discussed. It defined the crime of kidnapping in these terms::

11

Every person who seizes, confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries away any individual by any means whatsoever with intent to hold or detain, orwho holds or detains, such individual forransom, reward or tocommit extortion or robbery % Jc *'I* It isclear from the terms of this statute that the California legislature had redefined the crime of kidnapping to include situations where an asportation of the victimwas lacking. In so doing, the crime of kidnapping had been defined contrary toitscommonly accepted meaning. Consequently, a defendant could be convicted of kidnapping even though the same offense would have only constituted

an armed robbery inotherjurisdictions. In Knowles, the defendant and an accomplice had entered a clothing storeand compelled the proprietor and a clerk toenter
a stockroom inthe rear of the store. While momentarily confined in the stockroom, the clerk and the proprietor were robbed. One of defendants was convicted of kidnapping despite the fact that there had been no asportation of the victim; a crucial element under the

common law definitionof the crime. JusticeTraynor, writing for the majority of the California court, upheld the constitutionality of the statuteand stated: 

### here isno question that the Legislature has the power todefine kidnapping broadly enough to include the offense here committed and toprescribe the punishment specified in section 209. Subject tothe constitutional prohibition of cruel and unusual punishment, the Legislature may define and punish offenses as it sees fit. [Citingcases] It may define and punish askidnapping an offense that other statesregard only as armed robbery. Section 209 establishes that definition as the law of California. [Case cited] The statutory definition of the proscribed offenses 

### isnot rendered uncertain or ambiguous because some of the prohibited acts arenot ordinarily regarded askidnapping. II We agreewith the rationale of Knowles. The Montana legislature could have set fortha separate statuteprohibiting the cultivation of marijuana and could have labeled it accordingly. We see no reason fordeclaring the statuteunconstitutionalbecause the legislature defined a criminal offense in terms of several types of conduct which may constitute that single offense.We recognize that the legislature defined the saleof dangerous drugs toinclude offenses that other stateshave labeled llpossessionl'or llcultivation". Thewrit of supervisory control shall issue and this cause 

### isremanded tothe district courtwith directions toproceed to
a finaldisposition consistentwith this opinion.

We Concur:

Chief Justice



# .................................... Justices.Mr. JusticeFrank I. Haswell dissenting: I dissent. Section 54-132, R.C.M. 1947, declares that a person who cultivates marihuana commits the offense of a criminal sale thereof. The vice of this statutorydefinitionlies inprecluding proof that the accused did not sell ortransfer marihuana toothers, but only grew it for his own use. Proof of cultivation is sufficient toconvict without regard toproof of a sale

or transfer toanother. Classifying cultivation as a saleand prohibiting proof to the contrary creates a conclusive presumption that one who grows marihuana sells it criminally. A presumption is "a deduction which the law expressly directstobe made from particular facts", here a criminal sale from proof of cultivation. Section 93-1301-3, R.C.M. 1947. In the instant case, the presumption is made conclusive by definition of the crime: "A person commits the offense of a criminal sale of dangerous drugs if he 

## * 

## * * cultivates

## * * * any dangerous drug

## * 

## * *." The United States Supreme Court has expressed the test of constitutionality of such statutorypresumptions inTot v. United States, 319 U.S. 403, 63 S.Ct. 1241, 87 L.ed 1519, 1524: "Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the factproved and the ultimate factpresumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two incommon experience." This testof unconstitutionality fitslike a glove in this

case. 'there is no rational connection between the factproved {cultivationof marihuana) and the ultimate fact presumed (the criminal sale of marihuana). The inference of sale from proof of cultivation is arbitrary because of lack of connection between the two.Accordingly, I would affirm the district court in declaringthe statuteunconstitutional. inmy view, it denies the defendant "due process of law" by its arbitrary and irrational classificationof a "grower" as a "pusher" without regard tothe facts of the individual case.

Justice

Mr. Justice Gene 9. Daly dissenting: I concur with thedissent r. Justice Frank I. Haswell.