Peppers v. State , 53 Ala. App. 695 ( 1974 )

ON REHEARING

LEIGH M. CLARK, Supernumerary Circuit Judge.

With admirable skill, counsel for appellant continues to urge that the principle set forth in Schenher v. State, 38 Ala. App. 573, 90 So.2d 234, cert. denied 265 Ala. 700, 90 So.2d 238 and Fuller v. State, 39 Ala.App. 219, 96 So.2d 829, and other cases, to the effect that in a prosecution for unlawful possession or sale of narcotics the burden is upon defendant to bring himself within any exception or exemption provided by the statute creating the offense, is not applicable here, our opinion on original deliverance to the contrary notwithstanding. In view of the differences between the narcotics involved in the cited cases and the substance here involved, as emphasized by appellant’s counsel, the desirability of an effort to give full consideration to all possible argument pro and con on the point before arriving at a conclusion, and the fact that a resolution of the specific question is not necessary to a proper determination of this appeal, we now decline to decide whether the stated principle set forth in Schenher and Fuller is applicable in this case, and we accordingly modify and thus extend our original opinion.

The testimony in the case shows that some or all of the substance sold was marijuana that did not consist of “mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination.” By the great weight of the evidence, the State has fully met any burden that may have been upon it to show that marijuana sold was contraband.

The foregoing extension and modification of opinion was prepared by Judge CLARK and has been adopted with the concurrence of all the regular judges of the Court.

Opinion extended; application overruled.