State v. Zornes

475 P.2d 109, 78 Wash. 2d 9, 1970 Wash. LEXIS 267
CourtWashington Supreme Court
DecidedMay 14, 1970
Docket40222, 40223
StatusPublished
Cited by154 cases

This text of 475 P.2d 109 (State v. Zornes) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Zornes, 475 P.2d 109, 78 Wash. 2d 9, 1970 Wash. LEXIS 267 (Wash. 1970).

Opinions

Rosellini, J.

The defendants, husband and wife, who were both 22 years of age at the time of the trial of this action, were found guilty of a violation of RCW 69.33.410 (the Uniform Narcotic Drug Act). The evidence upon which they were convicted showed that about a half dozen officers raided their home on the night of August 11, 1967. The defendants were lying on the lawn at the time, watching for meteors. A thorough search of the premises uncovered some marijuana cigarette ends in garbage cans and a few bits of marijuana in a match box.

Insofar as the record discloses, neither of the defendants had ever before been convicted of a crime. The defendant Robert Zornes received a minimum sentence of 5 years and a maximum of 20 years in the state penitentiary, while the sentencing of the defendant Jenice Zornes was deferred for 6 years. She was ordered to spend 1 year in the county jail.

While this case was pending before this court, the legislature enacted Laws of 1969, 1st Ex. Ses., ch. 256, which provides (in those portions pertinent to the present case) as follows:

[11]*11Sec. 7. Section 69.33.220, chapter 27, Laws of 1959 and RCW 69.33.220 are each amended to read as follows:
The following words and phrases, as used in this chapter, shall have the following meanings, unless the context otherwise requires:
(13) “Narcotic drugs” mean coca leaves, . . . any other drugs to which the federal laws relating to narcotic drugs may now apply; and any drug found by the board of pharmacy, ... to have addiction-forming or addiction-sustaining liability similar to morphine or cocaine, . . . Provided, That narcotic drugs shall not include cannabis and the provisions of this chapter shall not ever be applicable to any form of cannabis.
Sec. 9. Section 1, chapter 6, Laws of 1939 as last amended by section 1, chapter 71, Laws of 1967 and RCW 69.40.060 are each amended to read as follows:
. . . (2) It shall be unlawful for a person, firm or corporation to sell, give away, barter, exchange or distribute any part of the plant Cannabis Sativa L., commonly known as marihuana, . . .
Sec. 10. Section 2, chapter 6, Laws of 1939 as amended by section 23, chapter 38, Laws of 1963, and RCW 69.40.070 are each amended to read as follows:
Whoever violates any provision of chapter 69.40 RCW, and said violation solely involves the drug cannabis, commonly known as marihuana, shall, upon conviction, be fined and imprisoned as herein provided:
(1) For the first offense, the offender shall be guilty of a misdemeanor, and punishable by a fine not exceeding five hundred dollars or by imprisonment in the county jail, not exceeding six months, or by both such fine and imprisonment;
Sec. 11. There is added to chapter 69.40 RCW a new section to read as follows:
Cannabis as now or hereafter defined by the Washington state board of pharmacy shall be a dangerous drug as defined herein and accordingly shall be subject to the provisions of chapter 69.40 RCW and shall not be considered a narcotic drug and accordingly not subject to the provisions of chapter 69.33 RCW as now law or hereafter amended.

(Italics ours.)

[12]*12Thus the legislature, in explicit language, took cannabis out of the Narcotic Drug Act (RCW 69.33.220) and specifically included it in the dangerous drug act (RCW 60.40.060). In that act, RCW 69.40.061 provides:

It shall be unlawful for any person to possess any of the drugs described in RCW 69.40.060, as amended from time to time, or any other drug which is required by any applicable federal or state law or federal regulation or Washington state pharmacy board regulation to be used only on prescription, except upon the order or prescription of a physician, surgeon, dentist or veterinary surgeon duly licensed to practice in the state of Washington: Provided, however, That the above provisions shall not apply to the possession by drug jobbers, drug wholesalers and drug manufacturers, to registered pharmacists or to physicians, dentists or veterinary surgeons.

It was the well-defined rule at common law that where a statute is repealed, it is, as regards its operative effect, considered as if it had never existed, except as to matters and transactions past and closed, and all pending litigation must be decided according to the state of the law at the time of the decision. 1 J. Sutherland, Statutes and Statutory Construction § 286 (166) (2d ed. 1904); G. Endlich, A Commentary on the Interpretation of Statutes § 478 (1888). State v. Allen, 14 Wash. 103, 44 P. 121 (1896); and see Ettor v. Tacoma, 57 Wash. 50, 106 P. 478, 107 P. 1061 (1910).

However, in 1901 the legislature enacted Laws of 1901, Ex. Ses., ch. 6, § 1, p. 13 (now RCW 10.01.040) which provides:

No offense committed and no penalty or forfeiture incurred previous to the time when any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, unless a contrary intention is expressly declared in the repealing act, and no prosecution for any offense, or for the recovery of any penalty or forfeiture, pending at the time any statutory provision shall be repealed, whether such repeal be express or implied, shall be affected by such repeal, but the same shall proceed in all respects, as if such provision had not been repealed, unless a contrary intention is expressly declared in the repealing act. Whenever any [13]*13criminal or penal statute shall be amended or repealed, all offenses committed or penalties or forfeitures incurred while it was in force shall be punished or enforced as if it were in force, notwithstanding such amendment or repeal, unless a contrary intention is expressly declared in the amendatory or repealing act, and every such amendatory or repealing statute shall be so construed as to save all criminal and penal proceedings, 'and proceedings to recover forfeitures, pending at the time of its enactment, unless a contrary intention is expressly declared therein.

This statute, being in derogation of the common law, must be strictly construed. Marble v. Clein, 55 Wn.2d 315, 347 P.2d 830 (1959).

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Cite This Page — Counsel Stack

Bluebook (online)
475 P.2d 109, 78 Wash. 2d 9, 1970 Wash. LEXIS 267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-zornes-wash-1970.