(dissenting).
I respectfully dissent. This conviction, and especially the judicial review of it, offends fundamental notions of fairness. The majority avoids facing the substantial contentions that may justify a reversal, through applying outmoded technicalities.
*1049The defendant, Kevin Barnes, is convicted of the possession of minute traces1 of marijuana. He was sentenced to five years in the penitentiary. He was 17 years of age at the time of conviction.
The infinitesimal traces of the drug were in the seam of a small envelope in the bottom of a pocket of some bluejean pants this teenager was wearing when arrested. He had spent the night with eleven other teenagers in a house rented by one of them, another college boy. There is no showing whatsoever in the evidence (a) that the bluejean pants belonged to young Barnes, (b)' that this boy knew of the small envelope in the bottom of one of the four pockets in these bluejean pants, (c) that this boy knew that there were any minute traces of a substance (analyzable only by microscope 2 in the laboratory) were in the bottom of the envelope, nor (d) that this boy knew any such minute traces in the envelope were marijuana. Nor was there any evidence from which this knowledge could be inferred as proved beyond a reasonable doubt.
I.
The principal alleged errors involve (a) the failure of the prosecution to introduce any evidence of “guilty knowledge” and (b) the failure of the trial court, despite objection, to charge the jury that guilty knowledge was required for conviction. Additionally, (c) it is strongly contended that the small envelope of marijuana was illegally and unconstitutionally seized and should not have been admitted in evidence.
For one technicality or another, this court does not pass upon any of these contentions. In each instance, an objection was made properly in the trial court, *1051the hill of exception clearly urged the contention, and the entire transcript is available to us for review, with the bill of exception indicating where in the transcript the evidence may be found.
It is in my view indefensible for an appellate court to avoid its function of review through the application of such court created technicalities — for it thus artificially to limit its own review of substantial contentions. In my view, an injustice has resulted here through the application of technicalities preventing consideration of substantial contentions. This I will attempt to show by more detailed discussion below.
II.
The Louisiana jurisprudence has firmly established the principle that guilty knowledge is an essential ingredient of the crime of possession of narcotic drugs, i. e., the knowing and intentional possession of a drug, knowingly subjecting the possessor to criminal liability. State v. Kreller, 255 La. 982, 233 So.2d 906 (1970), and many decisions cited therein, syllabus 1; Notes, 18 La.L.Rev. 340 (1958) and 17 La.L.Rev. 229 (1956). See also State v. Birdsell, 232 La. 725, 95 So.2d 290 (1957). So has every other jurisdiction similarly adopting the Uniform Narcotic Drug Act. Annotation, Narcotic — Possession—What Constitutes, 91 A.L.R.2d 810 (1963).
It is conceded that the jury must be instructed that, for conviction, there must be proof not only of possession, but also of guilty knowledge, beyond a reasonable doubt.
The defendant twice attempted to have the jury charged that guilty knowledge must be proved beyond a reasonable doubt, as well as possession. He presented a special charge to that effect, objecting and reserving a bill of exception when the court declined to do so. Tr. 263. Also, however, the defendant objected because the general charge did not refer to guilty knowledge as being an essential element of the crime, reserving a bill when that objection was overruled. Tr. 264.3
In perfecting his formal bill of exception on this issue, Bill of Exception No. 17, Tr. 78, the defendant alleges that he “requested the court to charge the jury to the effect that 'guilty knowledge’ is an essential element of the crime of possession of marijuana.” Bill of Exception No. 17 contains the notation “See transcript page no. 264.” In my view, this sufficiently includes for review, the objection and the surround*1053ing transcript contents thereto referred to: specifically, the failure of the general charge of the court, or of any charge, to refer to guilty knowledge. (At Tr. 264, it is well to note, the charge of the court commences.)
At least three judges of this court have expressed the view that this objection is well founded — that the general charge might reasonably indicate to the jury that mere possession of marijuana constituted commission of the felony. That is, the jury might have believed the only intent required for conviction was intent to possess the envelope in which the substance was contained, whether or not the possessor knew that the gleanings in the envelope were marijuana, for the possession of which he was punishable by years in the penitentiary.4
Further, in our original opinion, the majority expressed some concern as to whether the general charge did fairly instruct the jury as to the guilty knowledge required to be proved; but, after considering the entire charge, the maj ority concluded that it could he so interpreted. However, we must note, all seven judges considered the general charge as being before this court for review. We granted rehearing primarily because of our doubt as to the correctness of the holding that the general charge fairly informed the jury of the guilty-knowledge requirement.
The majority on rehearing, for the first time, interprets the hill of exception as not bringing the general charge before this court for review.
When this court itself is so sharply divided as to whether the general charge fairly informed the jury that guilty knowledge was a prerequisite to conviction (despite the defendant’s repeated efforts to have the charge corrected to do so), can we really feel that laymen on the jury would deduce from the technical legal definitions of the charge that such guilty-knowing possession must be proved beyond a reasonable doubt?
*1055When this court has differed so broadly in determining just what was brought up before us for review (with all seven judges at one time believing the entire general charge was available for the determination of the merits of the bill of exception), can we honestly conclude that this conscientious, diligent, and able counsel for this indigent boy really failed to do all necessary to bring the general charge before us for review ?
If the judges of this court can differ so widely in their interpretation of the contents of the bills and of the criminal procedure statutes, should not we wonder whether or not our procedural rules in this regard fairly inform the accused of what he needs to do in order to assure at least consideration on the merits of errors urged? Do not such extremely technical interpretations raise- questions of due process, as resulting in unknowing waivers of constitutional rights and of substantive defenses (cf., Henry v. Mississippi, 379 U.S. 443, 1965, 85 S.Ct. 564, 13 L.Ed.2d 408) ?
III.
Without more showing of intentional and knowing possession of the prohibited drug 5, or without showing that the possessor should reasonably have known in the ordinary course of human experience of his illegal possession, La. R.S. 14:106, a conviction should be reversed, assuming the ground was suitably preserved for review.7
Although the defendant clearly attempted to raise this ground for reversal, when he moved for a directed verdict at the close of the prosecution’s case (Bill of Exception No. 16), we fail to pass upon this contention at all in the present majority opinion. In our original majority opinion, we likewise failed to pass upon this contention because “no evidence is made part of the Bill.”8
*1057The formal Bill of Exception No. 16, Tr. 75, urges as error that: “the defendant moved for a directed verdict in his favor on the grounds that the State has failed to prove the existence of any guilty knowledge on the part of the defendant in his alleged possession of the marijuana. The court denied the motion, and the defendant reserved this bill of exception to the ruling of the court.”
At the top of this bill is found the notation “See Transcript Page Number 255”.
At transcript page 255 is found the following:
Mr. Brown: The State rests.
Mr. Ryan: Your Honor at this time I move for a directed verdict of not guilty to be given to the jury when they return for the reason that the State has failed to prove the elements of guilty knowledge which is an essential ingredient of the crime of the possession of a narcotic drug.
By the Clerk: The motion for a directed verdict taken up and argued.
The Court: Let the defendant’s motion for a directed verdict be overruled.
Mr. Ryan: To the ruling of the Court I reserve bill of exception number 16.
The Court: Let the bill be reserved and all testimony attached thereto.
La.C.Cr.P. Art. 843 provides that, “When a bill of exception is reserved, the clerk or the court stenographer shall immediately take down the objection, the ruling, and the facts upon which this objection is based. The matters, so taken down, * * * shall constitute the bill of exceptions, and shall be a basis for a formal bill of exceptions.”
Here, of course, everything was transcribed, as is the modern practice in most districts of this state now. (Perhaps as short as ten years ago, many districts just called in the court stenographer to take down objected-to portions of the testimony.)
La.C.Cr.P. Art. 844 provides that “A formal bill of exceptions shall contain only the evidence necessary to form a basis for the bill * *
To me, this statutory langitage does not command that the defendant and court reporter must again transcribe the testimony objected and the surrounding circumstances, whenever the modern practice of transcribing all the testimony is followed, as here. It simply means that, in the days and in areas where the free services of the criminal court reporter were or are not readily available, the only transcription required is of the objected-to testimony.9
*1059In any event, however technically the statutory requirement of Article 844 is read, it seems to me that the present formal bill of exception noting “See transcript page 255”, should be regarded as incorporating the actual bill of exceptions taken, see Article 843, which includes not only the objection, the ruling, and the reservation of bill of exceptions, but also “all testimony”, pursuant to the trial judge’s order. La.C.Cr.P. Art. 843, quoted above.
If we once look at the entire testimony produced by the State, then we see that the motion for directed verdict should have been sustained, since the State did not produce any evidence at all to prove guilty knowledge.10
IV.
The other substantial contention of error involves the alleged unconstitutional and illegal search of young Barnes’s person and the seizure of the small folded envelope containing infinitesimal traces of marijuana. It is conceded that, if this contention is upheld, the conviction should be reversed, since this is the only evidence whatsoever against this boy.
A hearing was held on the motion to suppress this evidence. When the motion was denied, the defendant reserved his bill of exception to this ruling. His formal bill (No. 6) to this ruling notes that the bill was reserved to ruling of the court overruling the motion to suppress evidence.11
The present majority opinion does not discuss this bill. The original majority opinion refused to look at the evidence educed at the hearing on the motion to suppress. The reason was that this evidence was not attached to the formal bill of exception raising this error.
For the reasons previously noted, I believe we are in error in not considering this evidence. It is contained fully in the transcript; both the evidence involved and the ruling complained of are easily ascertainable from the record and the actual *1061bill of exception when reserved in the record.
In the present instance, young Barnes had spent the night at a house where about ten other teenagers had gathered. The law enforcement officers suspected a “pot party” was in progress. About noon, Barnes had left the house in a white Dodge, and the officer tailing him had allegedly tried to tail his vehicle but lost sight of it due to its excessive speed.
When Barnes returned three hours later, he was arrested. It is important to note that the only claim of right to arrest him was because of his speeding some three hours earlier, and his driving then without a driver’s license. (The great weight of the evidence shows that, on the return, Barnes’ companion was driving.)
The police officers themselves so testified. Other excuses now alleged for the arrest are afterthoughts.
The arrest without a warrant for these earlier traffic violations was illegal. La. Code Crim.P. Art. 213. The search of the boy’s person, again after the officers had previously patted down and assured themselves that this 125-pound boy was not armed, was illegal for lack of probable cause, cf. State v. Lawson, 256 La. 471, 236 So.2d 804 (1970), and it rather plainly violated federal Fourth Amendment guarantees against illegal searches of the person. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968).
V.
I should, finally, note the futility of avoiding judicial review of substantial claims through the application of extremely technical policies. In the first place, since the defendant had not had any of his substantial contentions reviewed on the merits, the majority’s opinion is not such a consideration of them as will bar post-conviction relief.
In the second place, insofar as young Barnes alleges (correctly in my opinion) that his rights under the federal constitution have been denied him, neither the United States Supreme Court on direct review, Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), nor the lower federal courts on collateral review, are bound by our application of a narrow state policy, which serves no legitimate state aim but, instead, amounts to imposing on a defendant an involuntary waiver of rights guaranteed to him by our state and federal constitutions.
If the defendant had been afforded his day in this appellate court — if his substantial contentions had been reviewed on their merits — , and if indeed on the merits a majority had concluded that an affirmance was required, then perhaps I would not have felt obliged to write so strongly and *1063at this length of my difference of view from my esteemed and sincere colleagues.
However, the majority has utilized technicalities to avoid considering the defendant’s contentions on their merits. For that reason alone, I must strongly dissent from our affirmance of the sentence of this 17-year-old boy to five years in the penitentiary, aside from my personal conviction based on study of the record and the law that an injustice has resulted.
. The State’s chemist estimated the total quantity to be five milligrams. A milligram is one-thousandth of a gram and equals 0.015 grains in U.S. measure. A grain is equal to 0.002285 ounces. See Webster’s Third New International Dictionary (unabridged) (1961), pp. 1399 (“measures and weights”) and 1424 (“meti-ic system”). As I calculate this, the sum total of this teenager’s possession consisted of 0.000171375 ounces.
. The State technician who identified the substance as marijuana admitted that he could do so only because of the microscopic similarity of the traces to the characteristics of marijuana. He was unable to conduct any other tests because of the minuteness of the quantity available. An arresting officer estimated that there were 2-3 grains, Tr. 223, or a few particles, Tr. 237, in the lining of the bottom of the small folded envelope.
In several states, the “possession” required by Section 2 of the Uniform Narcotic Drug Act, La.R.S.: 40:962 (1951) in this State, has been interpreted to exclude minute portions of a substance of a drug not sufficient for illegal use, such as here. See Annotation, Narcotic — Possession—What Constitutes, 91 A.L.R.2d S10. Section 7 (1963). In these states the quantity here — even if it had been proved that the defendant knowingly possessed it — would not support a conviction of possession in violation of law.
. Mr. Ryan: “I would Rave to object to the charge of the jury on the grounds that it does not make a reference to the guilty knowledge as being an essential element of the crime of possession of narcotics.”
The Court: “Let that objection be overruled.”
Mr. Ryan: “And I reserve a bill of exception to the ruling of the Court.”
. The Uniform Narcotic Drug Act and its stringent penalties for possession of marijuana, La.R.S. 40:981 (as amended through 1963), has since been replaced by the Uniform Controlled Dangerous Substances Law, Act 457 of 1970, La. R.S. 40:961 through 40:990 (1970). Under this new Act, a first offender such as the present could not be punished by imprisonment longer than one year in the parish jail, La.R.S. 40:971(d) (1), with the further provision that a conditional discharge on probation can be entered without adjudication of guilt, La.R.S. 40 :977.1. The present young boy has already been in the parish jail, unbonded, since August 18, 1969, well more than the maximum sentence that could be imposed under the new law. However, the new statute specifically provides that prosecutions under prior laws shall not be abated by the new enactment, La.R.S. 40:987, although sentences after its enactment, for violations under the former laws, shall not exceed the maximum provided by the new statute, Act 457, Section 4.
. Such as evidence of use on prior occasions. See State v. Kreller, 255 La. 982, 233 So.2d 906. 1970. We can be sure there was none affecting young Barnes, since none was introduced, as is usual in narcotics-possession prosecutions.
. A basis, perhaps, might have been furnished by any evidence that young Barnes even owned the pants he was wearing, in which the envelope was found to which the gleanings of marijuana adhered.
. See, e. g.: State v. Chavis, 270 N.C. 306, 154 S.E.2d 340 (1967) (Evidence insufficient to support conviction when uncertain, inter alia, whether the defendant knew marijuana was in the hat he had been wearing); People v. Faulkner, 83 Ill.App.2d 54, 220 N.E.2d 467 (1967) (Narcotics found in the pocket of pants in the defendant’s apartment not proved to be in his possession, in absence of proof that he owned the pants).
. We also cited State v. Hudson, 253 La. 992, 221 So.2d 484, 1969, which held our own Code of Criminal Procedure Article 778 unconstitutional insofar as providing for directed verdicts. The affirmance in this case is not yet final, since an application for certiorari is still pending before the United States Supreme Court. 39 Law Week '3006, 39 Law Week 3017, Docket No. 48,' United States Supreme Court 1971 docket..
. Iia.R.S. 13 :961, the general statute regulating court reporters, provides: “No fee shall be charged for taking evidence on bills of exception, motions, or other pleadings in criminal cases. All copies required to perfect appeals shall be fur*1059nished at no additional cost.” The requirement of Article 844 that “only” the evidence necessary for the bill shall be contained therein should be read in the light of this traditional requirement.
. Although in the non-final decision of State v. Hudson, 253 La. 992, 221 So.2d 484 (1969), see footnote 8 above, a majority held Article 778 of our Code of Criminal Procedure unconstitutional insofar as providing for a directed verdict, it seems to me that this recent holding is erroneous and was not necessary under the pleadings of the case, so that upon reconsideration a majority of this court will hold otherwise.
. Additionally, he objected to introduction of the evidence at the trial as unconstitutionally seized, Bill of Exception No. 14, and out of precaution also raised this objection by a motion to quash the indictment, alleging that if the seizure is sought to be justified under La.Code Orim.P. Art. 225, such code article is unconstitutional. I do not discuss this contention, because I find the search and seizure invalid on other grounds.