# Westbrook v. State > Supreme Court of Arkansas · June 10, 1985 · 286 Ark. 192 URL: https://www.frixlaw.com/law-library/cases/9653141 ## Case - **Full name:** J.D. WESTBROOK v. STATE of Arkansas - **Court:** Supreme Court of Arkansas - **Decided:** June 10, 1985 - **Citations:** 286 Ark. 192; 691 S.W.2d 123; 1985 Ark. LEXIS 2048 - **Precedential status:** Published - **Opinion:** Dissent by Purtle - **Judges:** George Rose Smith - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9653141 ## Opinion text John I. Purtle, Justice, dissenting. My first disagreement is with the third point in the majority opinion where the majority refuses to construe Ark. Stat. Ann. § 82-2617 (a)(l)(iv) (Supp. 1983) as to whether possession of marijuana is a felony or a misdemeanor. We have refused to construe this statute several times because the issue was not considered preserved for appeal. When construction of a statute is holding up a large number of cases like this one is, we should construe it at the first opportunity. My real disagreement is with the court’s holding that the evidence was sufficient to sustain a conviction for possession with intent to deliver. The snake in the grass in this case is Jim Vick. It was he who informed the sheriff, who himself was in the midst of a campaign for re-election, that marijuana was in appellant’s house. I have no doubt about his reliability on this point because the evidence unmistakably reveals that he was the culprit who placed it there. Several witnesses observed Vick smoking marijuana and even saw him take dishes out of the trunk of his car that appeared to be the same dishes in which the marijuana was found. Vick shared appellant’s house except that each maintained his own bedroom. No contraband was found in appellant’s bedroom. Several ounces of marijuana were found in the kitchen area which was shared by the two men. The only evidence found in appellant’s bedroom was an article or two about growing marijuana. He may have been curious about how such plants are grown but the evidence lends no credence to a charge of possession. A lustful thought in a man’s mind will not support a charge of rape. Neither will reading about marijuana support a possession charge. Two “roaches” were found in the bathroom but Vick may well have planted them there. This evidence might be incriminating of each occupant of the house and of each recent visitor to either Vick or appellant. The officers claim to have found a warm glass in the area where appellant was seated when they arrived with the search warrant supported by the now disappeared ungrateful Mr. Vick. I have no idea of how a warm glass points to possession of marijuana for sale. If it in any manner indicates the presence of marijuana, it was obviously for smoking it. The appellant is a 62 year old farmer with no prior record. There was not even a rumor that he was trafficking in contraband. No one testified he was a dealer or even a user. The crime lab found the marijuana, exhibit 19, to contain 1.2 ounces of marijuana. With a known user in the house, and the complete absence of direct evidence that appellant ever used, sold, manufactured or dealt in marijuana, I cannot find substantial evidence to support a verdict that appellant was guilty of possession with intent to deliver beyond a reasonable doubt. I would reverse and dismiss. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9653141. Public record. Not legal advice.