No. 12934 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

THE STATE OF MONTANA ex re1 

ALLEN LEMIEUX, County Attorney 

in and for the County of Jefferson, 

Rela tor, 

THE DISTRICT COURT OF THE FIFTH 

JUDICIAL DISTRICT OF THE STATE 

OF MONTANA, in and for the County 

of Jefferson, and the HON. FRANK 

E. BLAIR, Judge thereof, 

Respondents. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Rela tor : 

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 : 

FEB -3 197'5 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Original Proceeding. 

This is an application for a writ of supervisory control by 

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 Information was granted by the district court 

of the Fifth Judicial District charging defendants, Penny Mitchell 

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 trial was commenced and the state 

presented evidence that defendants had cultivated approximately 

30 marijuana 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 evidence was 

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 statute was unconsitutional because 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 defendants was 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 sale of dangerous drugs. (a) A person 

commits the offense of a criminal sale of dangerous drugs if he 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. I I 

Defendants argue that section 54-132 offends due process 

requirements because by its terms, an irrebuttable presumption 

is created that one who cultivates a dangerous drug as defined 

in the Act is guilty of selling the same. In support of this 

contention defendants rely principally upon 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 it was a crime 

for any person who had previously been convicted of a crime of 

violence to receive any firearm or ammunition that had been shipped 

through interstate commerce. Section 2(f) of that statute contains 

this explicit presumption: 

If* * * and the possession of a firearm or ammunition 

by any such person shall be presumptive evidence that 

such firearm or ammunition was shipped or transported 

or received, as the case may be, by such person in 

violation of this chapter. 11 

The United States Supreme Court in - Tot declared the statute 

unconstitutional and set forth this test: 

"Under our decisions, a statutory presumption 

cannot be sustained if there be no rational connection between the fact proved and the ultimate fact 

presumed, if the inference of the one from proof 

of the other is arbitrary because of lack of connection between the two in common experience. ;I 

Under this test, defendants argue, there is no rational 

connection between the fact of cultivation of marijuana and the 

sale of marijuana. We decline to speculate whether such a rational 

connection exists because we do not agree that section 54-132, R.C.M. 

1947, creates a presumption. According to the terms of section 

54-132, one is guilty of the offense of sale of dangerous drugs 

if any of the following prohibited criminal activities are committed: 
1) Selling, bartering, exchanging, or giving 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, or processing any 

dangerous drug as defined in the act. 

A reading of this statute compels the conclusion that the 

legislature broadly 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 are adverse 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" ordinary meanings in 

defining words for statutory purposes. 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" to include a theft. In 

Calvert the Texas Court of Appeals declared the statute unconstitutional and stated that the statutory definition of the term was 

strained, contrary to its ordinary meaning, and so arbitrary that 

due process had been denied. 

However, the Texas Supreme Court later reversed this decision 

in Calvert v. Zanes-Ewalt Warehouse, Inc., (Texas 1973), 502 S.P.2d 

689, and upheld the constitutionality of the statute despite the 

fact that the term "sale" was defined in a way that was at odds with 

its ordinary meaning. The reviewing court found no abuse of due 

process. 

Research on the constitutionality of criminal statutes that 

define terms contrary to their 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, or who holds or detains, such individual 

for ransom, reward or to commit extortion or robbery 

% Jc *'I* 

It is clear from the terms of this statute that the California 

legislature had redefined the crime of kidnapping to include situations where an asportation of the victim was lacking. In so doing, 

the crime of kidnapping had been defined contrary to its commonly 

accepted meaning. Consequently, a defendant could be convicted of 

kidnapping even though the same offense would have only constituted 

an armed robbery in other jurisdictions. 

In Knowles, the defendant and an accomplice had entered a 

clothing store and compelled the proprietor and a clerk to enter 

a stockroom in the 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 definition of the crime. 

Justice Traynor, writing for the majority of the California 

court, upheld the constitutionality of the statute and stated: 

 here is no question that the Legislature has the 

power to define kidnapping broadly enough to include 

the offense here committed and to prescribe the punishment specified in section 209. Subject to the constitutional prohibition of cruel and unusual punishment, the 

Legislature may define and punish offenses as it sees fit. 

[Citing cases] It may define and punish as kidnapping 

an offense that other states regard only as armed robbery. 

Section 209 establishes that definition as the law of 

California. [Case cited] The statutory definition of the 

proscribed offenses is not rendered uncertain or ambiguous 

because some of the prohibited acts are not ordinarily regarded as kidnapping. I I 

We agree with the rationale of Knowles. The Montana legislature 

could have set forth a separate statute prohibiting the cultivation 

of marijuana and could have labeled it accordingly. We see no 

reason for declaring the statute unconstitutional because 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 sale of 

dangerous drugs to include offenses that other states have 

labeled llpossessionl' or llcultivation". 

The writ of supervisory control shall issue and this cause 

is remanded to the district court with directions to proceed to 

a final disposition consistent with this opinion. 

We Concur: 

Chief Justice 

.................................... Justices. 
Mr. Justice Frank 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 statutory definition lies in precluding proof that the accused did not sell or transfer marihuana 

to others, but only grew it for his own use. Proof of cultivation is sufficient to convict without regard to proof of a sale 

or transfer to another. 

Classifying cultivation as a sale and 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 directs to be 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 statutory presumptions in Tot 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 fact proved and the ultimate 

fact presumed, if the inference of the one from 

proof of the other is arbitrary because of lack 

of connection between the two in common experience." 

This test of unconstitutionality fits like a glove in this 

case. 'there is no rational connection between the fact proved 

{cultivation of 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 declaring 
the statute unconstitutional. in my view, it denies the defendant 

"due process of law" by its arbitrary and irrational classification of a "grower" as a "pusher" without regard to the facts 

of the individual case. 

Justice 

Mr. Justice Gene 9. Daly dissenting: 

I concur with the dissent r. Justice Frank I. 

Haswell.