No. 8312SC29 | N.C. Ct. App. | Nov 15, 1983
It is well-established under our law that one being tried under a bill of indictment can properly be convicted of any lesser offense that is included therein, G.S. 15-170, and that a crime is not a lesser included offense of another crime if the former contains any element that the latter does not. State v. Overman, 269 N.C. 453" court="N.C." date_filed="1967-03-01" href="https://app.midpage.ai/document/state-v-overman-1224669?utm_source=webapp" opinion_id="1224669">269 N.C. 453, 153 S.E. 2d 44 (1967).
The substance called hashish and the substance called marijuana are both derivatives of the plant cannabis sativa L. Both are included in Schedule VI of the Controlled Substances Act under the general heading “marijuana.” G.S. 90-94, 95. Marijuana or marihuana, is the Mexican name for the plant. Taber’s Cyclopedic Medical Dictionary (7th ed. 1958). But though marijuana is generally thought of on the street and in the trade as dried leaves of the contraband plant, statutorily it is all parts of the plant and nearly all its derivatives. G.S. 90-87(16). Hashish, however, is the compressed resin extracted from the plant. G.S. 90-95(d)(4).
In the Controlled Substances Act marijuana and hashish are treated differently only in the statute which sets the penalty for felony possession. Simple possession of each is a misdemeanor; possession of more than an ounce of marijuana is a felony; possession of more than one-tenth of an ounce of hashish is a felony. G.S. 90-95(d)(4). This distinction was apparently made by the Legislature because the active ingredient in marijuana is contained in the plant’s resin, which is more concentrated in the extracted hashish than in the dried leaves of the plant itself.
Thus, under our law defendant has not been convicted of a lesser included offense. State v. McGill, 296 N.C. 564" court="N.C." date_filed="1979-02-05" href="https://app.midpage.ai/document/state-v-mcgill-1369799?utm_source=webapp" opinion_id="1369799">296 N.C. 564, 251 S.E. 2d 616 (1979). Furthermore, since the indictment he was tried under did not allege that the amount of hashish possessed weighed more than one-tenth of an ounce, an element of the crime, he has been convicted of a crime that he has not been properly indicted for. This is not permissible under our law and the conviction cannot stand. State v. Baldwin, 61 N.C. App. 688" court="N.C. Ct. App." date_filed="1983-04-19" href="https://app.midpage.ai/document/state-v-baldwin-1330195?utm_source=webapp" opinion_id="1330195">61 N.C. App. 688, 301 S.E. 2d 725 (1983). But misdemeanor possession of hashish — the unauthorized posses
Remanded for judgment.