(dissenting).
I am unable to concur in the majority’s conclusion that sufficient evidence was presented during the trial for the jury to find that the appellant intended to deliver the marijuana found in his possession.
The appellant’s counsel at trial (not counsel on this appeal) is now the prosecuting attorney for Elmore County, and his questions during the trial elicited more incriminating statements than the prosecutor’s questions. Although some of the incriminating answers by police officers were not responsive to the questions asked, there was no objection or motion for a mistrial.
The only evidence concerning the appellant’s intent to deliver the marijuana was a police officer’s testimony concerning the quantity and packaging, and the amount of marijuana.
The police officer testified as follows:
“Q Officer Kelley, when you were looking at this material on the bed, did you try to come to any conclusion what these individuals were doing with the marijuana and the plant material ?
A Yes, sir, I probably did.
Q And what was your opinion?
A Through experience, when you have a large quantity, when it’s packaged like this, I think you would draw a conclusion, its probably held for *172sale, when they are packaged like this.” (Emphasis added)
The officer’s testimony was not offered in the form of an expert’s opinion but was only his personal opinion as to the appellant’s intended use of the marijuana. Furthermore, no attempt was made to qualify the officer as an expert in marijuana cases.
At the time of the appellant’s arrest 394.4 grams of marijuana and 3.828 grams of hashish were seized. The contraband was found in a house trailer occupied by the appellant and his room mate who was convicted of possession of a controlled substance. There was no admissible evidence concerning any transfer of the controlled substances by the appellant. It was stipulated by the defense during the trial that the quantity of marijuana amounted to 1180 cigarettes. The appellant testified that he smoked two or three cigarettes a day and more on the weekends, but the fact that he could not consume the entire amount in any set period of time does not necessarily lead to the conclusion that he would deliver the substance to other persons.
The stipulation that the 394.4 grams of marijuana amounted to 1180 cigarettes raises many questions. The size of a cigarette depends on the person rolling it. In the case of State v. O’Mealey this court noted :
“Marihuana, A Signal of Misunderstanding; First Report of the National Commission on Marihuana and Drug Abuse (1972), Appendix I, pp. 28-30, appears to indicate that the amount found in defendant’s possession in this case could be reasonably expected to furnish approximately 126, 0.5 gram marijuana cigarettes.” 1
Under that standard of .5 grams per cigarette, the appellant was in possession of 789 cigarettes. The difference demonstrates that what may be a large supply of marijuana to one person may be a moderate or small supply to another. Clearly quantity alone is not sufficient to show intent to deliver.
The appellant’s conviction should be reversed.
. 95 Idaho 202, 506 P.2d 99, 102 (1973).