The opinion
BARHAM, Justice
(dissenting).
Almost one year ago we granted a special fixing in this case in order to dispose of the appeal of a young man who had been convicted of possession of marijuana in violation of R.S. 40:962. In our first opinion, handed down on June 29, 1970, the majority of this court as then constituted affirmed his conviction. I alone dissented. We had before us at that time a full transcript of all proceedings below, including the evidence taken on the preliminary hearings and on the trial of the case and the charge given to the jury. Throughout that opinion the majority after reference to the per curiams of the trial court rejected many of the bills of exception, saying that the evidence had not been made part of the bills. However, most of the bills of exception referred to page numbers in the transcript. These page numbers directed this court to the testimony and evidence which was pertinent to those bills of exception. It cannot be said that this court could not have, with facility, properly reviewed the bills including the evidence in the transcript, for we reviewed 105 bills of exception in State v. Square, 257 La. 743 , 244 So. 2d 200 , decided January 18, 1971, where the record was prepared in an almost identical manner.
Moreover, this court on that first hearing, including this dissenter, in reviewing Bill of Exception No. 17 did not restrict itself to the per curiam to that bill but examined the general charge to which the complaint was directed. Bill of Exception No. 17 was reserved when the trial judge refused the following requested special charge: "Guilty knowledge is an essential ingredient of the crime of possession of narcotic drug.” The majority found that the general charge, which it then considered to be before it, covered this special requested charge. I dissented, pointing out that the special charge was a correct statement of the law and was not included in the general charge, and that therefore an essential ingredient of the crime proposed to be charged was not in fact made a part of the instructions to the jury. The majority of the court voted for a rehearing on the basis of this dissent.
*1069 Unfortunately, the defendant remained in jail for many months before the application for rehearing was considered and granted. Unfortunately, he still languishes in jail after the case has been lodged with us for almost a year. Even more unfortunately, the majority of the court have now refused to examine the general charge to the jury (formerly considered) to determine whether the defendant was convicted under an instruction which included all of the necessary ingredients of the crime. All members of this court without •question looked at that charge on first hearing, apparently with the belief that such an examination was required of the court under our law. Now, after many months of delay, the majority have decided that the charge should never have been examined in the first place. On this technicality they affirm the conviction of a man under a charge of law which required a jury to convict even if an essential ingredient of the crime (guilty knowledge) had not been established. Not only has the court erred, but I believe that the court has committed a grave injustice and has reached a most inequitable result. Not decisive of the issue but at least persuasive is the fact that this young man has now been incarcerated for a period longer than the sentence which could be imposed under the new law concerning this offense adopted at the 1970 legislature.
I repeat: This court, having on first hearing passed upon the merits of a bill of exception which the entire membership of the court considered to be before it, should not now on rehearing refuse to examine that bill. The long delay involved in this case and the grave injustice which results from the combination of circumstances were not deliberate action on the part of this court. Nevertheless, these constitute a miscarriage of justice which we could and should correct. Considering the action of the majority in this regard so erroneous and grievously inequitable, I pretermit a discussion of other possible error. I dissent.