State v. McKinney , 24 N.C. App. 259 ( 1974 )

CAMPBELL, Judge.

The defendant was being tried for the unlawful sale and distribution of a drug, tetrahydrocannabinol. This raises the question as to what this drug is. Stedman’s Medical Dictionary Unabridged Lawyers’ Editon (1961) defines tetrahydrocannabi-nol as, “A highly active constitutent of Cannabis indica.” Cannabis indica in turn is defined as, “Indian hemp; hashish; marijuana; marihuana; the dried flowering tops of the pistillate plants of Cannabis sativa, gathered before the fruits are developed. Narcotic, sedative, analgesic, and aphrodisiac.”

The defendant contends that the trial court was in. error in failing to dismiss the action and enter a judgment as of nonsuit.

In a criminal case the proper motion to test the sufficiency of the State’s evidence to carry the case to the jury is a motion to dismiss the action or a motion for judgment as in the case of nonsuit pursuant to G.S. 15-173. The sufficiency of the evidence for the State in a criminal case is reviewable upon appeal without regard to whether a motion has been made pursuant to G.S. 15-173 in the trial court. G.S. 15-173.1. From the record in this case, it appears that the defendant did not make any motion at the conclusion of all the evidence. However, we review the sufficiency of the State’s evidence under the provisions of G.S. 15-173.1 as if the proper motion had been made under G.S. 15-173. On such motion the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable intendment thereon and every reasonable inference therefrom. Contradictions and discrepancies, even in the State’s evidence, are for the jury to resolve and do not warrant nonsuit. All of the evidence favorable to the State is considered, and defendant’s evidence relating to matters of defense or defendant’s evidence in conflict with that of the State is not considered. To withstand a judgment as of nonsuit there,must be substantial evidence of all material elements of the offense charged. Whether the State has offered such substantial evidence presents a question of law for the trial court. State v. Everette, 284 N.C. 81, 199 S.E. 2d 462 (1973).

Applying this test, we think the evidence sufficient to carry the case to the jury.

Dr. Ellis was competent to testify concerning facts within his knowledge based upon his actual treatment of Franklin and to render his opinion as to what Franklin was suffering from and for which he was treated. His testimony in this regard was entirely competent.

Defendant also assigns as error that portion of the charge of the judge to the jury wherein the judge equated tetrahydrocannabinol and “THC” as being the same thing. The defendant asserts that no witness testified to the fact that the two were the same. We disagree. Dr. Ellis testified that he was familiar with the abbreviation “THC” and that that abbreviation represents “a substance similar to marijuana like drugs.” We have heretofore pointed out that the dictionary definition of tetrahydrocannabinol defines it as a highly active constitutent of cannabis indica and that cannabis indica in turn is marijuana. When we apply the mathematical axiom that things equal to the same thing are equal to each other, we come up with the answer that “THC” and tetrahydrocannabinol are one and the same.

We have considered the other assignments of error brought forward by the defendant, and we conclude that the defendant had a fair trial free of prejudicial error.

Under the defense presented, this case presented a question for the twelve, and they found against the defendant.

No error.

Chief Judge Brock and Judge Hedrick concur.