STATE v. GARCIA, 82 N.M. 536 (App. 1971)

484 P.2d 756

STATE of New Mexico, Plaintiff-Appellee, v. Diane GARCIA, Defendant-Appellant.

No. 634.Court of Appeals of New Mexico.
April 23, 1971.

Appeal from the District Court, Curry County, Dee C. Blythe, D. J.

Chester A. Hunker, Clovis, for defendant-appellant.

David L. Norvell, Atty. Gen., Santa Fe, John A. Darden, Asst. Atty. Gen., for plaintiff-appellee.

OPINION
WOOD, Judge.

Defendant was prosecuted under § 54-7-14, N.M.S.A. 1953 (Repl. Vol. 8, pt. 2, Supp. 1969) for the unlawful sale or delivery of marijuana. This is the general narcotics statute. Defendant contended before the trial court, and asserts here, that the prosecution should have been under § 54-5-14, N.M.S.A. 1953 (Repl. Vol. 8, pt. 2), which is the special statute. We agree. This issue was decided in State v. Riley, 82 N.M. 235, 478 P.2d 563 (Ct.App. 1970). Riley has been applied in State v. Thorn (Ct.App.), 82 N.M. 431, 483 P.2d 312, decided March 12, 1971; State v. Rendleman, 82 N.M. 346, 481 P.2d 708 (Ct.App. 1971), and State v. McNeece, 82 N.M. 345, 481 P.2d 707 (Ct.App. 1971). The State asserts that State v. Riley, supra, was wrongly decided. We disagree; instead, we reaffirm what was stated in the Riley opinion.

The judgment and sentence is reversed. The cause is remanded with instructions to dismiss the charge against defendant under the general narcotics statute.

It is so ordered.

SPIESS, C. J., and SUTIN, J., concur.

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