(1) The information is sufficient. It sets forth definitely each and every fact which, by the statute, is a necessary element of the crime; and could be plead in bar of a subsequent prosecution for the same offense. Sec. 5645, R.S. 1919. (2) Title to naturae ferae is in the State, and the Legislature may prohibit the taking of game entirely, or permit it as a privilege, under such regulations and restrictions as it sees fit to impose. Sec. 5581, R.S. 1919; State v. Weber, 205 Mo. 36, 10 L.R.A. (N.S.) 1115, 120 Am. St. 715; State v. Heger, 194 Mo. 707; Greer v. Connecticut, 161 U.S. 19, 40 L.Ed. 793; State v. Snowman, 50 L.R.A. 545; State v. Blount, 85 Mo. 543; City of St. Joseph v. Levin, 128 Mo. 588; St. Louis v. Baskowitz, 273 Mo. 543; LaCoste v. Dept. of Conservation, 151 La. 909; Manning v. Roberts, 179 Ky. 550. Where the State has absolute title, substantially as a private proprietor, for the benefit of its own people, it is subject to no restrictions not applicable to other private proprietors. McReady v. Virginia, 94 U.S. 391; People v. Lowndes, 139 N.Y. 455. (3) The Legislature may, in the exercise of its police power, limit the amount of game taken. It may regulate the manner of taking game.
"The prior statute 'ma[d]e possession of marijuana (or any other controlled drug or substance) a felony.' Roberts v. State, 349 So.2d 89, 92 (Ala.Cr.App.), cert. denied, Ex parte Roberts, 349 So.2d 94 (Ala. 1977). An indictment pursuant to § 20-2-70(a) was not required to allege that the accused's possession was not for personal use because, under that section, there was a presumption that the possession was for other than personal use.
The prior statute "ma[d]e possession of marijuana (or any other controlled drug or substance) a felony." Roberts v. State, 349 So.2d 89, 92 (Ala.Cr.App.), cert. denied, Ex parte Roberts, 349 So.2d 94 (Ala. 1977). An indictment pursuant to § 20-2-70(a) was not required to allege that the accused's possession was not for personal use because, under that section, there was a presumption that the possession was for other than personal use.
It appears that the Legislature has not placed the burden and since Powers v. State, supra, it has been uniformly held that for a defendant charged with possession of marijuana to come within the quoted proviso the burden is upon him to show that his possession of marijuana was for his personal use only, since possession for personal use only is a defensive matter. Corbin v. State, 312 So.2d 604 (Ala.Cr.App. 1975); Roberts v. State, 349 So.2d 89 (Ala.Cr.App. 1977), writ denied, 349 So.2d 94 (Ala. 1977). It is to be noted that at times in an indictment for possession of marijuana it is expressly charged that defendant's possession thereof was not for his personal use only, thereby expressly charging a felony, and at times the indictment has expressly charged the possession was for defendant's personal use only, thereby expressly charging a misdemeanor. At still other times, we find that the indictment charges the defendant with the sale of marijuana, which precludes the notion that the charge is for a misdemeanor only.
Felony possession of marijuana is punishable by a minimum of two years' imprisonment for amounts not exceeding 2.2 pounds (Code 1975, § 20-2-70 (a)), and a minimum of three years' imprisonment plus a $25,000 fine for amounts over 2.2 pounds (Code 1975, Supp. 1982, § 20-2-80). Misdemeanor possession of marijuana exists only for marijuana held for "personal use," and is a one-time exception (Code, § 20-20-70 (a)); Roberts v. State, 349 So.2d 89 (Ala.Cr.App.), cert. denied, 349 So.2d 94 (Ala. 1977). Because we must now decide a question of first impression, that being whether felony possession of marijuana involves moral turpitude, a close analysis of the moral turpitude impeachment rule and its rationale proves helpful.
State ex rel. v. Hackmann, 305 Mo. 685; State ex rel. v. Buckner, 308 Mo. 390; State ex rel. v. Daneuser, 319 Mo. 799. Title to naturae ferrae is in the State, and the Legislature may prohibit the taking of game entirely, or permit it as a privilege, under such regulations and restrictions as it sees fit to impose. Sec. 5581, R.S. 1919; State v. Weber, 205 Mo. 44; State v. Heger, 194 Mo. 707; Greer v. Connecticut, 161 U.S. 19, 40 L.Ed. 793; State v. Snowman, 94 Me. 99, 50 L.R.A. 545, 80 Am. St. 380; State v. Blount, 85 Mo. 543; St. Joseph v. Levin, 128 Mo. 594; St. Louis v. Baskowitz, 273 Mo. 543, 201 S.W. 870; Lacoste v. Dept. of Conservation, 151 La. 909, 92 So. 381; Manning v. Roberts, 179 Ky. 550, 200 S.W. 937; State v. Bennett, 288 S.W. (Mo. Sup.) 50. Where the state has absolute title, substantially as a private proprietor, for the benefit of its own people, it is subject to no restrictions not applicable to other private proprietors. McReady v. Virginia, 94 U.S. 391, 24 L.Ed. 248; People v. Lowndes, 139 N.Y. 455.
]" In Manning v. Roberts, 179 Ky. 550, 554, the defendant Roberts, a game warden, found the plaintiff Manning hunting, and saw the feathers and legs of wild birds sticking out of the saddle bags in the possession of Manning. Roberts demanded that Manning exhibit the statutory license authorizing him to hunt, and when the license of Manning was not exhibited, Roberts thereupon seized and took possession of the saddle bags, opened the same, and counted the birds therein. Manning sued Roberts to recover damages for an alleged assault and trespass, claiming that the section of the Kentucky Game Act, authorizing game wardens "to arrest on sight and without warrant any person detected by them in the act of violating such law, and . . . to seize, without process, any birds or game found in the possession" of any violator of the act, together with the dogs, guns and other instrumentalities used by the offender, is violative of Section 10 of the Bill of Rights of the Kentucky Constitution, inhibiting unreasonable searches and seizures.
The initial intrusion in this case, which occurred when the officer moved the appellant's vehicle out of the path of traffic, was lawful because the officer had a duty to move the truck off the street in order to prevent a possible traffic hazard. § 32-5A-139, Code of Alabama 1975; Martin v. State, 529 So.2d 1032, 1033 (Ala.Cr.App. 1988); Roberts v. State, 349 So.2d 89, 94 (Ala.Cr.App.), cert. denied, 349 So.2d 94 (Ala. 1977). Because the cocaine was hidden under the truck's floor mat, it was not in plain view.
The appellant's knowledge of the presence of drugs may be established by circumstantial evidence. Smith v. State, 351 So.2d 668 (Ala.Cr.App.), cert. denied, 351 So.2d 675 (Ala. 1977); Roberts v. State, 349 So.2d 89 (Ala.Cr.App.), cert. denied, 349 So.2d 94 (Ala. 1977). "Here the evidence presented raised a question of fact for the jury.
This Court cannot rewrite the statute even to make a "better" law. Compare Roberts v. State, 349 So.2d 89, 93 (Ala.Cr.App.), cert. denied, 349 So.2d 94 (Ala. 1977); Palmer v. State, 54 Ala. App. 707, 711, 312 So.2d 399, 402 (1975), indicating that the misdemeanor possession of marihuana exception contained in former § 20-2-70 was available only on first conviction. For the reasons stated above, the judgment of the Randolph Circuit Court is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.