State v. Lucks

Full title: STATE of Hawaii, Plaintiff-Appellee, v. Michael LUCKS…

Court: Supreme Court of Hawai‘i

Date published: Sep 26, 1975

541 P.2d 16 (Haw. 1975)

Opinion

541 P.2d 16 (Hawai'i 1975) STATE of Hawaii, Plaintiff-Appellee, v. Michael LUCKS, Defendant-Appellant. STATE of Hawaii, Plaintiff-Appellee, v. Alan H. GOLDBERG, Defendant-Appellant. Nos. 5564, 5592. Supreme Court of Hawai'i. September 26, 1975

       Brook Hart, William S. Hunt, Hart, Leavitts&sHall, Honolulu, for petition.

       PETITION FOR REHEARING

       BEFORE RICHARDSON, C. J., KOBAYASHI, OGATA and MENOR, JJ., and FONG, Circuit Judge, assigned by reason of vacancy.

       PER CURIAM.

       This court finds that its prior opinion in State v. Lucks contains a statement of fact not supported by the record, i. e., the statement that '(m)oreover (appellant Lucks) had separately potted each of the six plants . . ..' 56 Haw. at 134, 531 P.2d 855, at 859.

       Nevertheless, appellant's petition for rehearing filed on February 12, 1975 is denied, because the unsupported statement was no material to the reaching of our result in the case. The opinion clearly states that appellant's act of watering the marijuana plants, in itself, 'demands the conclusion' that both elements of the crime of cultivation had been satisfied. 56 Haw. at 134, 531 P.2d at 859. See also Miller v. State, 94 Tex.Cr.R. 508, 251 S.W. 1104 (1923), pet. for reh. denied, 94 Tex.Cr. 512, 251 S.W. 1106; State v. Murray, 67 Nev. 131, 215 P.2d 265 (1950), pet. for reh. denied, 67 Nev. 131, 216 P.2d 606.