(dissenting)..
I regret that I must dissent from the-opinion of my worthy and able colleagues..
The trial court’s first error was in admitting as one exhibit the marijuana cigarettes in the possession of Mr. Mackey,, which he attempted to hide under the seat: of the unmarked police vehicle. There is-no showing that appellant Cunningham had. anything to do with these cigarettes and. there is no showing of any control or dominion over them or joint possession of the cigarettes.
The other portion of the exhibit, the remains of a burned cigarette in the possession of appellant Cunningham, did not have a useable amount of marijuana, as-was proven by the State’s witness, Anna. Steerngast of the Tucson-Pima County-Crime Laboratory.
Our Supreme Court has repeatedly held'that there must be a useable amount of the-narcotic drug1 sufficient to be used by the-. accused. State v. Moreno, 92 Ariz. 116, 374 P.2d 872 (1962); State v. Laurino, 108 Ariz. 82, 492 P.2d 1189 (1972). As has. been clearly stated, where there is not a. useable amount of marijuana in the possession of the person accused, there cannot be-a conviction of possession of marijuana..
*317The majority cites People v. Francis, 71 Cal.2d 66, 75 Cal.Rptr. 199, 450 P.2d 591 (1969) , which I do not feel is in point. Also cited is State v. Goetz, 491 P.2d 220 (Or.App.1971). This case was reversed and remanded on the subject of the amount and indicates that Oregon does not follow the useable amount rule as Arizona does. The third case cited by the majority is State v. Larkins, 3 Wash.App. 203, 473 P.2d 854 (1970), which also deals with useable amount and was reversed. I am well aware of the fact that these cases are cited for the proposition that circumstantial evidence may be used to prove possession, but I do not think the cases are in point when the facts are studied carefully. I believe that we must follow our Supreme Court in that there must be proof of a useable amount for conviction of possession.
For the reasons stated, the conviction of the appellant Cunningham should be reversed.
. There is a grave question as to whether marijuana is a narcotic drug.