dissenting. I do not agree with the majority opinion in this case. It is my opinion the trial court did not err in refusing to give the appellant’s instruction No. 10.
As pointed out in the majority opinion, the Uniform Controlled Substances Act, Ark. Stat. Ann. §§ 82-2601 — 82-2638 (Supp. 1973), is an overall Act pertaining to all of the many controlled substances including marijuana. As I read § 82-2601 (m) its interpretation is plain. “Manufacture” means either the production, the preparation, the propagation, the compounding, the conversion or the processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction, etc. The controlled substance is the object of the manufacture by any one or combination of these processes.
I am unable to read from the evidence in this case that the appellant was engaged in the manufacture of a controlled substance through the process of preparation or compounding. The controlled substance, marijuana, is a plant and is simply not manufactured by preparation or compounding. It is manufactured by production and Ark. Stat. Ann. § 82-2601 (u) (Supp. 1973) states: “‘Production’ includes the manufacture, planting, cultivation, growing or harvesting of a controlled substance.” That was what the appellant was charged with and was convicted of. The exception set out in § 82-2601 (m) “except that the term [manufacture] does not include the preparation or compounding of a controlled substance by an individual for his own use. . . ” (emphasis added) simply does not apply to growing marijuana.
Bedell was not charged in this case with the possession of marijuana for any purpose. The evidence that he even possessed marijuana inside his home was offered for the purpose, and the sole purpose, of showing his connection with the marijuana that was still growing in, and had been harvested from his fields. My main reason for dissent in this case is stated by the majority as reason for their reversal. The majority opinion says:
“The evidence from which a jury might have drawn an inference that Bedell had prepared or compounded marijuana for his own use came primarily from the sheriff and his deputy. They found: a pillowcase containing marijuana in the closet in the southwest bedroom of his home; a glass jar and a plastic box, both containing marijuana cigarette butts (The cigarettes had been smoked) under Bedell’s bed; and a paper sack containing marijuana on a bedroom closet shelf.”
The majority then say that the fact there were cigarette butts in some containers along with loose marijuana in others, certainly constituted evidence that would justify a belief that Bedell had “prepared” marijuana. As I view this case, the mere fact that the jury might so find, as the majority indicate, was a better reason for not giving appellant’s instruction No. 10 than it was for giving it. The marijuana in this case had already been grown and harvested and the manufacturing process by production had been completed before it was placed in the pillowcase and paper bag and stored in the appellant’s home. All that was left for the appellant to do was lie in bed and enjoy the fruits of his labor. The cigarette butts found in the jar and the plastic container under appellant’s bed, to me, were simply evidence that he had been smoking in bed and had not emptied his ashtrays. Certainly it was no evidence he was manufacturing marijuana by preparation or compounding. It was only evidence that he had harvested some of his marijuana crop and had produced smoke from the marijuana he had grown and harvested.
Apparently the majority feel that unless the appellant smoked the entire marijuana plant, stalk, roots, leaves, seed and all, the jury could have reasonably found he prepared and compounded, and thereby manufactured, the leaves he did smoke. The harvesting of marijuana and stripping the leaves from the stalk could be considered preparation and compounding as easily as rolling a cigarette from the leaves or placing the leaves in a pillowcase or paper bag; consequently, under appellant’s instruction No. 10, he could have argued that he only prepared and compounded his entire marijuana crop for his own use.
Now if Bedell had been charged and tried for manufacr turing marijuana by the unusual, if(not impossible, process of preparation or compounding a controlled substance then, perhaps, he would have been entitled to the defense that he only prepared and compounded it for his individual use and had not manufactured it within the meaning of § 82-2601 (m), supra, but this was not the case. The trial court throughout the trial of this case admitted the marijuana found in the appellant’s home to show the chain of title from the fields to the appellant’s home and the evidence was limited to that purpose. The appellant did not testify and he offered no evidence as to his intended use of the marijuana found on his farm or in his home.
I would affirm the judgment.
Harris, C.J., and George Rose Smith, J., join this dissent.