OPINION
E. T. HENSLEY, Jr.,' Chief Judge, Court of Appeals.The appellant was indicted by a grand jury, charging him with violating § 54-7-14, N.M.S.A.1953. A petit jury returned a verdict of guilty.
The appellant contends that § 54-7-14, N.M.S.A.1953, being Chapter 145, Laws of 1935, is a general statute relating to narcotic drugs. The appellant further contends that § 54-5-14, N.M.S.A.1953, being Chapter 97, Laws of 1935, is a specific statute dealing with marijuana. The appellant would have the conviction reversed because of the conclusion reached in State v. Blevins, 40 N.M. 367, 60 P.2d 208.
The defendant in the Blevins case was charged with having violated the provisions of § 35-1617, Comp.St.1929, being a statute prohibiting and declaring it a criminal offense for any person to knowingly sell any property of another. The legislature had prescribed the penalty for a violation of this statute to be imprisonment for not less than one year nor more than ten years. The defendant Blevins contended that since he was charged and convicted of the offense of selling one neat cattle, the property of another, that he should have been prosecuted under § 35-2405, Comp.St.1929.
The statute just referred to, so far as material, reads:
“Any person who shall steal, embezzle, or knowingly kill, sell, drive, lead', or ride away, or in any manner deprive the owner of the. immediate possession o'f any neat cattle, horse, mule, sheep, goat, swine, or ass; * * * shall be deemed guilty of a felony, and on conviction thereof in any court of competent jurisdiction shall be punished by imprisonment not less than one year nor more than five years, * *
In State v. Blevins, supra, we held that the generai statute is not operative as to the special kinds of property described in the special statute and that, consequently, the defendant should have been prosecuted under § 35-2405.
Here we are confronted with a different situation. Section 54—5-14, N.M.S.A.1953, is a statute dealing with marijuana only. Section 54-7-14, N.M.S.A. 1953 is a statute relating to narcotic drugs. Both statutes were originally enacted by the same legislature in 1935. The statute relating to narcotic drugs has been amended by subsequent legislatures, and the amendment in 1953 specifically mentioned the word “marijuana.” See § 54-7-15, N:M.S.A.1953.. Further, in State v. Romero, 74 N.M. 642, 397 P.2d 26, where a defendant was charged with . unlawful possession of a narcotic drug, to-wit, cannabis indica, also known as marijuana, and the .proof at the trial'was limited to marijuana, we held that there was not.a fatal variance. In short, we concluded that marijuana was a narcotic 'drug. Thus, we now hav.e two statutes prohibiting traffic in marijuana; Since they both deal 'with the same subject, they are in pari materia. This is the first distinction to be noted in this and in the case of State v. Blevins, supra.
The purpose of the “pari materia” rule is to ascertain and carry into effect the legislatures’ intention. Dupont et al. v. Mills et al., 9 W.W.Harr. (Del.) 42, 196 A. 168, 119 A.L.R. 174.
The fundamental rule in construing statutes is to ascertain and give effect to the intention of the legislature. In re Vigil’s Estate, 38 N.M. 383, 34 P.2d 667, 93 A.L.R. 1506. It would seem obvious that the legislature in 1953, by amending the narcotic act to include the narcotic drug marijuana did so with a full knowledge of the earlier act, and apparently intended to make the narcotic act controlling. The difference between this case and State v. Blevins is clearly discernible and State v. Blevins can give no comfort to the appellant here.
While the instant appeal was pending, we ■ announced the decision in Aragon v. Cox, 75 N.M. 537, 407 P.2d 673. In that case, we arrived at a conclusion that was not necessarily germane to the issue involved and which we now revise. In Aragon v. Cox, supra we concluded that where both statutes condemn certain conduct the state has a choice in selecting the statute to be ' employed in a prosecution for violation. • We no longer subscribe to that view which would permit the law enforcement authorities to subject one person to the possibility of a greater punishment than another who has committed an identical act. This would do violence to the equal protection clauses of our state and federal constitutions.
We now say that the two statutes where they condemn the same act are in pari materia. The penalty provisions being different, they are irreconcilable. See State v. Pirkey (1955), 203 Or. 697, 281 P.2d 698. The legislature, having amended § 54-7-15, N.M.S.A.1953, being Chapter 146, Laws of 1961, that being the penalty provision following § 54-7-14, and not having amended the penalty provisions following § 54-5-14, N.M.S.A.1953, impliedly intended that its last expression would control. Accordingly, we hold that the prosecution here was properly conducted under the applicable statute.
Secondary matters urged by the appellant as grounds for reversal are deemed to be without merit and further reference herein would serve no useful purpose. The conviction and sentence appealed from should be affirmed.
It is so ordered.
CHAVEZ and NOBLE, JJ., concur.