OPINION OF THE COURT BY
MARUMOTO, J.
Defendant was convicted after a jury trial in the circuit court of knowingly possessing marihuana in violation of HES § 329-5. The portion of the statute relevant to this case reads as follows:
“§ 329-5. Additional acts prohibited; penalty. No person shall knowingly plant, cultivate, produce, manufacture, possess, have under his control, prescribe, administer, or compound any narcotic drug as defined by section 329-1 except as provided in this chapter. Any person found guilty of any of the foregoing acts shall be imprisoned at hard labor not more than five years [661]*661for the first offense and imprisoned at bard labor not more than ten years for any subsequent offense; provided that, every person wbo possesses any marijuana, except as otherwise provided by law, shall be punished by imprisonment for not more than one year, or for not less than one year nor more than five years.”
The proviso in the statute was added by S.L.H. 1969, c. 161. It grants to the circuit court discretionary power to treat possession of marihuana either as a felony or as a misdemeanor. This was defendant’s first conviction for the offense. So, the court treated the violation as a misdemeanor, placed the defendant under probation for one year and imposed upon him a fine of $100.
The case was submitted to the jury upon the following stipulation of facts:
“That the State is able to prove by the testimony of the three arresting officers, upon the trial of Gregory Dale Hogue, that the defendant Gregory Dale Hogue on or about the 5th day of March, 1970, in the County of Kauai, State of Hawaii, did then and there at the invitation of a friend, one Charles Glagolich, who was the owner of a pipe containing marihuana in hashish form while sitted at a picnic table at Lydgate Park with Mr. Glagolich and three other friends, Stephanie Kay Stearns, Johnny Kay Griffith and Georgia Marie Shannon, did knowingly take two puffs from a pipe containing marihuana in hashish form.
“That the three officers will testify that, prior to the arrest, they observed Charles Glagolich turn over a pipe containing marihuana in hashish form to one Stephanie Kay Steams, who after a couple of puffs turned it over to one Johnny Ray Griffith, who after a couple of puffs turned it over to defendant Gregory Dale Hogue. That defendant Gregory Dale Hogue was observed by the three arresting officers with a hashish [662]*662pipe in bis hands, no one else was holding it, and did take two puffs from said pipe knowing it to contain marihuana in hashish form. That after the pipe had been passed and the actions were observed by the three arresting officers, defendant together with his friends were placed under arrest for unlawful possession or control of marihuana. Defendants were properly advised of their constitutional rights.
“That the State’s contention is that the offense committed by defendant Gregory Dale Hogue is the knowingly taking of two puffs from a pipe containing marihuana in hashish form owned by one Charles Gla-golich. Defendant, if called, will testify that he took only one puff from said pipe.
“That the residue within the pipe was analyzed by Dr. Quentin Belles. Said analysis revealed an oily residue which a chemical test showed was charred marihuana.”
The defense counsel entered into the stipulation with the full understanding of the defendant. The record shows the following colloquy between the court and the defendant :
“THE COURT: Mr. Hogue, do you agree with the stipulation of facts?
“DEPENDANT: Yes, your honor, I do.”
Among the instructions given by the circuit court to the jury were the following:
“If counsel for the parties have stipulated to any fact, you are to regard that fact as being conclusively proved.
* * # *
“Hawaii statutes do not state that smoking marihuana, per se, is legal or illegal. It does state that possession or control of marihuana, in its various forms, is illegal.
[663]*663“Considering the totality of the circumstances, a person may smoke marihuana without ‘possessing’ or ‘controlling’ it, or he may smoke marihuana in such a way that he does have possession or control over it.
“To ‘possess’ means to have the actual control, care and management of the marihuana (hashish), and not a passing control fleeting and shadowy in its nature.”
On this appeal, no trial error is alleged. The appeal is based on the denial by the circuit court of two motions to dismiss made before the trial under H.E.Cr.P. Rule 12. The motions were renewed at the close of the case for the prosecution, and again at the close of the case for the defendant, in the form of a motion for judgment of acquittal under H.E.Cr.P. Rule 29.
The first motion for dismissal was made on the ground that the mere passing and puffing from a marihuana pipe owned and supplied by another was insufficient as a matter of law to constitute a possession of marihuana proscribed in HRS § 329-5. The stipulation quoted above provided the factual basis for the motion.
The ground for the second motion was that the nature and the quantity of the marihuana residue found in the pipe was so minute as to be insufficient as a matter of law to be capable of the type of possession proscribed by the statute. On this motion the last paragraph of the quoted stipulation was not to be considered. Instead, the motion was submitted upon a factual situation stated in the first three paragraphs of the stipulation, the report of Dr. Quentin Belles to the police department regarding the residue in the pipe from which the defendant took the puff or puffs, and the additional stipulation that Dr. Belles could determine the presence of marihuana in the pipe only by a chemical test and not by any microscopic test.
[664]*664In presenting the first motion to the circuit court, the defense relied on Eckroth v. State, 227 So. 2d 313 (Fla. 1969). That was a case in which a Florida district court of appeal held that the taking of a “drag” from a pipe belonging to another person and filled with marihuana, and passing the pipe on among persons seated in a circle, evinced a mere passing control fleeting and shadowy in nature, and did not constitute sufficient possession to support a conviction for unlawful possession of marihuana.
The case was reversed by the Florida supreme court in State v. Eckroth, 238 So. 2d 75 (Fla. 1970), while this case was on appeal here. The reversal was based upon a reaffirmance of Reynolds v. State, 92 Fla. 1038, 111 So. 285 (1927), a prohibition era case involving unlawful possession of liquor, which defined possession as “conscious and substantial possession * * *, as distinguished from a mere involuntary or superficial possession”, and the application of the definition to the facts in the case.
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OPINION OF THE COURT BY
MARUMOTO, J.
Defendant was convicted after a jury trial in the circuit court of knowingly possessing marihuana in violation of HES § 329-5. The portion of the statute relevant to this case reads as follows:
“§ 329-5. Additional acts prohibited; penalty. No person shall knowingly plant, cultivate, produce, manufacture, possess, have under his control, prescribe, administer, or compound any narcotic drug as defined by section 329-1 except as provided in this chapter. Any person found guilty of any of the foregoing acts shall be imprisoned at hard labor not more than five years [661]*661for the first offense and imprisoned at bard labor not more than ten years for any subsequent offense; provided that, every person wbo possesses any marijuana, except as otherwise provided by law, shall be punished by imprisonment for not more than one year, or for not less than one year nor more than five years.”
The proviso in the statute was added by S.L.H. 1969, c. 161. It grants to the circuit court discretionary power to treat possession of marihuana either as a felony or as a misdemeanor. This was defendant’s first conviction for the offense. So, the court treated the violation as a misdemeanor, placed the defendant under probation for one year and imposed upon him a fine of $100.
The case was submitted to the jury upon the following stipulation of facts:
“That the State is able to prove by the testimony of the three arresting officers, upon the trial of Gregory Dale Hogue, that the defendant Gregory Dale Hogue on or about the 5th day of March, 1970, in the County of Kauai, State of Hawaii, did then and there at the invitation of a friend, one Charles Glagolich, who was the owner of a pipe containing marihuana in hashish form while sitted at a picnic table at Lydgate Park with Mr. Glagolich and three other friends, Stephanie Kay Stearns, Johnny Kay Griffith and Georgia Marie Shannon, did knowingly take two puffs from a pipe containing marihuana in hashish form.
“That the three officers will testify that, prior to the arrest, they observed Charles Glagolich turn over a pipe containing marihuana in hashish form to one Stephanie Kay Steams, who after a couple of puffs turned it over to one Johnny Ray Griffith, who after a couple of puffs turned it over to defendant Gregory Dale Hogue. That defendant Gregory Dale Hogue was observed by the three arresting officers with a hashish [662]*662pipe in bis hands, no one else was holding it, and did take two puffs from said pipe knowing it to contain marihuana in hashish form. That after the pipe had been passed and the actions were observed by the three arresting officers, defendant together with his friends were placed under arrest for unlawful possession or control of marihuana. Defendants were properly advised of their constitutional rights.
“That the State’s contention is that the offense committed by defendant Gregory Dale Hogue is the knowingly taking of two puffs from a pipe containing marihuana in hashish form owned by one Charles Gla-golich. Defendant, if called, will testify that he took only one puff from said pipe.
“That the residue within the pipe was analyzed by Dr. Quentin Belles. Said analysis revealed an oily residue which a chemical test showed was charred marihuana.”
The defense counsel entered into the stipulation with the full understanding of the defendant. The record shows the following colloquy between the court and the defendant :
“THE COURT: Mr. Hogue, do you agree with the stipulation of facts?
“DEPENDANT: Yes, your honor, I do.”
Among the instructions given by the circuit court to the jury were the following:
“If counsel for the parties have stipulated to any fact, you are to regard that fact as being conclusively proved.
* * # *
“Hawaii statutes do not state that smoking marihuana, per se, is legal or illegal. It does state that possession or control of marihuana, in its various forms, is illegal.
[663]*663“Considering the totality of the circumstances, a person may smoke marihuana without ‘possessing’ or ‘controlling’ it, or he may smoke marihuana in such a way that he does have possession or control over it.
“To ‘possess’ means to have the actual control, care and management of the marihuana (hashish), and not a passing control fleeting and shadowy in its nature.”
On this appeal, no trial error is alleged. The appeal is based on the denial by the circuit court of two motions to dismiss made before the trial under H.E.Cr.P. Rule 12. The motions were renewed at the close of the case for the prosecution, and again at the close of the case for the defendant, in the form of a motion for judgment of acquittal under H.E.Cr.P. Rule 29.
The first motion for dismissal was made on the ground that the mere passing and puffing from a marihuana pipe owned and supplied by another was insufficient as a matter of law to constitute a possession of marihuana proscribed in HRS § 329-5. The stipulation quoted above provided the factual basis for the motion.
The ground for the second motion was that the nature and the quantity of the marihuana residue found in the pipe was so minute as to be insufficient as a matter of law to be capable of the type of possession proscribed by the statute. On this motion the last paragraph of the quoted stipulation was not to be considered. Instead, the motion was submitted upon a factual situation stated in the first three paragraphs of the stipulation, the report of Dr. Quentin Belles to the police department regarding the residue in the pipe from which the defendant took the puff or puffs, and the additional stipulation that Dr. Belles could determine the presence of marihuana in the pipe only by a chemical test and not by any microscopic test.
[664]*664In presenting the first motion to the circuit court, the defense relied on Eckroth v. State, 227 So. 2d 313 (Fla. 1969). That was a case in which a Florida district court of appeal held that the taking of a “drag” from a pipe belonging to another person and filled with marihuana, and passing the pipe on among persons seated in a circle, evinced a mere passing control fleeting and shadowy in nature, and did not constitute sufficient possession to support a conviction for unlawful possession of marihuana.
The case was reversed by the Florida supreme court in State v. Eckroth, 238 So. 2d 75 (Fla. 1970), while this case was on appeal here. The reversal was based upon a reaffirmance of Reynolds v. State, 92 Fla. 1038, 111 So. 285 (1927), a prohibition era case involving unlawful possession of liquor, which defined possession as “conscious and substantial possession * * *, as distinguished from a mere involuntary or superficial possession”, and the application of the definition to the facts in the case. In applying the definition to the case, the court stated: “The possession and control of defendant Eckroth in the instant case meets the Reynolds test. In fact, the uncontradicted evidence establishes actual, physical possession and control of the drug.”
We agree with the Florida supreme court in its definition of possession and its application of the definition to the facts in that case.
Here, the situation is similar to the situation in Eck-roth. The stipulation stated that the defendant was observed by three police officers “with a hashish pipe in his hands, no one else was holding it, and did take two puffs from said pipe knowing it to contain marihuana in hashish form”, after two other persons sitting at the same table took two puffs each from the same pipe. The facts stipulated, as having been observed by the officers, show conscious and substantial possession, not a mere involuntary [665]*665or superficial possession, and much more than a passing control, fleeting and shadowy in nature.
Thus, the circuit court did not err in denying the first motion to dismiss. Nor did it err in its denial of the second motion, as discussed below.
Let us assume arguendo that the statute merely proscribes possession of a usable quantity of narcotic drug. On that assumption, the circuit court could have granted the second motion only upon ruling that the defendant did not possess a usable quantity of marihuana as a matter of law. Under the stipulation applicable to the motion, the court would not have been warranted in making such a ruling. The stipulation stated that the defendant took one puff from the pipe, by his own admission, and, if the police officers were to be believed, he took two puffs, knowing that the pipe contained marihuana in hashish form. The most that can be said in favor of the defendant, is that the stipulation posed a jury question. People v. Leal, 64 Cal. 2d 504, 50 Cal. Rptr. 777, 413 P.2d 665 (1966). On the question of usable quantity here, Dr. Belles’ test was not material. It was a test of the residue in the pipe after the defendant had smoked, and had no bearing on the quantity of marihuana in the pipe when the defendant held it and smoked from it.
The defense argues that the legislature has not expressly outlawed the smoking of marihuana, that its silence in this regard suggests that it was more concerned with curbing the dealer and supplier than with the user at the end of the supply chain, and that in an area where the legislature has remained silent it appears to be a proper judicial function “to dilute the number of marihuana defendants down to only the owner-user while freeing the non-owner user.”
The answer to the argument is that the question before us is in an area where the legislature has spoken, not [666]*666where it has remained silent. In an area where the legislature has spoken, our function is to give effect to the legislative will.
The acts proscribed in HRS § 329-5 are basically those which are prohibited in § 2 of the Uniform Narcotic Drug Act. Contention has frequently been advanced that the word “possess,” as used in § 2 of the uniform act, doés not refer to possession of a narcotic drug for the personal use of the possessor. Courts have rejected such contention. State v. Martin, 193 La. 1036, 192 So. 694 (1939); Gonzales v. People, 128 Colo. 522, 264 P.2d 508 (1953); State v. Reed, 34 N.J. 554, 170 A.2d 419 (1961); State v. DaVila, 150 Conn. 1, 183 A.2d 852 (1962). It is stated in State v. Reed as follows, as one of the reasons for rejection:
“* * * [Sjection 4 of the Drug Act provides that ‘it shall be unlawful for any person to * * * possess * * * any narcotic drug, except as authorized by this chapter* * * There follows a number of sections which permit possession under certain conditions by physicians, pharmacists, and others who must, handle narcotics in the regular course of business. * * * Section 36 expressly permits possession for the possessor’s personal consumption or use if he has obtained the drug from an authorized dispenser for medical treatment and if he keeps the unused drug in the container in which he received it. * * * This exception shows that the Legislature considered the problem of possession by a user. And the provision in section 4 that possession is unlawful except as authorized elsewhere in the statute, together with section 36, shows that the Legislature intended possession for personal consumption unrelated to medical treatment to be a violation of the act.”
[667]*667We agree with the foregoing reasoning. Sections 4 and 36 of the New Jersey act, referred to in the quoted opinion, are §§ 2 and 11 of the uniform act. HRS § 329-15 is basically § 11 of the uniform act. It provides: “A person to whom or for whose use any narcotic drug has been sold or dispensed by an apothecary, physician, dentist, podiatrist, or practitioner, * * * may lawfully possess it in the container delivered to him by the person selling or dispensing the same.” From this, it may be clearly inferred that possession of any narcotic drug for personal use otherwise than as prescribed for medical treatment comes within the prohibition of HRS § 329-5.
Furthermore, the concern of the legislature with dealers and suppliers of narcotic drugs is shown specifically in its enactment of S.L.H. 1953, c. 19, § 1(3), now compiled in HRS § 329-3, which reads: “It shall be unlawful for any person to possess with the intent to sell or to sell or dispense any narcotic drug * * *, except as provided in this chapter.” (Emphasis supplied) The proscription of possession in HRS § 329-3 was originally enacted in S.L.H. 1931, c. 152, § 3. The legislature would have had no reason to enact S.L.H. 1953, c. 19, § 1(3), if S..L.H. 1931, c. 152, § 3, were directed solely against dealers and suppliers.
Also, it may be concluded from the enactment of S.L.H. 1969, c. 161, that the legislature understood the proscription in HRS § 329-5 to encompass possession of any narcotic drug, including marihuana, for personal use. That act amended HRS § 329-5 by adding the proviso which gave the circuit court discretionary power to treat possession of marihuana, as distinguished from other narcotic drugs, either as a misdemeanor or a felony. Possession of marihuana by a dealer or a supplier comes within the proscription of HRS § 329-5, but, if intent to sell can be [668]*668proved, it is basically a violation of HRS § 329-3, wbicb is a felony.
John ¡3. Edmunds, Chief Deputy Public Defender (Brook Hart, Public Defender, with Mm on the briefs) for appellant.
Gerald S. Matsunaga, Deputy County Attorney, County of Kauai (Kei Hirano, County Attorney, with him on the brief) for appellee.
Affirmed.