¶1(dissenting) :
¶2I respectfully dissent to this decision, because the evidence offered was circumstantial evidence establishing the USE of marihuana. Title 63 O.S.1961, § 469, provides in part:
“The use of … marihuana, except when used pursuant to the direction of a licensed physician or dentist for medicinal purposes, is hereby declared to be unlawful and to constitute a misdemean- or, and upon conviction thereof punishable by confinement in the county jail for a term of not more than six (6) months.”
¶3When the officers entered the apartment, they smelled a “weak odor of marihuana”; they subsequently observed two pipes sitting on a table; they picked up the pipes, smelled of them, and confirmed that marihuana had been smoked in them. Except for defendant’s admission to the officers that he had smoked marihuana, the officers would have only had circumstantial evidence that marihuana had been smoked by someone. On cross-examination Officer Cartner testified, “When I observed it, the pipe it had — the material was packed down in it and had a coal or a burnt coal on top of it where it had been smoked.” He was then asked, “Did you see any of that unburnt marijuana in the pipe on that night?” The officer answered, “No, sir, it had a — As a pipe, I’m sure you know what a pipe looks like after it’s been smoked.” The next question, “ … Did you see any of that unburnt marijuana in the pipe?” The answer followed, “No, but it could be under the burnt portion.”
¶4The officer also testified that he carefully handled the pipes, to prevent spilling the residue from them. Later a tape was placed over the top of the pipes, to assure that the contents would remain in them. The laboratory analysis proved the contents to have been marihuana; but nowhere in the record is there any statement concerning how much marihuana was found. From Officer Cartner’s testimony, it is learned that “it could be under the burnt portion.”
¶5To my way of thinking, this conviction is a Gross Miscarriage of Justice. When the prosecution must stretch the law of evidence beyond reasonable limits, in order to sustain a conviction, it becomes understandable why the confidence in our system of jurisprudence is shaken. The quantity of substance found in the two pipes in this case was insufficient to sustain a conviction for possession of marihuana.
¶6In Watson v. State, 495 P.2d 365 (1972), the Supreme Court of Nevada was confronted with an appeal from conviction for *1330possession of marihuana consisting of “17 marijuana seeds weighing but a fraction of a gram scattered on the floor in the bedroom occupied by his two teen-age daughters.” In reversing the conviction, the Nevada Court stated on page 366:
“The charge of possession of a narcotic drug requires a union of act and intent. The intent necessary to establish the crime of possession simply does not exist when the amount is so minute as to be incapable of being applied to any use, even though chemical analysis may identify a trace of narcotics.”
¶7Other cases in which it was held that possession of minute quantities of a narcotic useless for either sale or consumption is an insufficient foundation upon which to sustain a conviction for possession are: People v. Leal, 64 Cal.2d 504, 50 Cal.Rptr. 777, 413 P.2d 665 (1966); State v. Lar-kins, 3 Wash.App. 203, 473 P.2d 854 (1970); State v. Haddock, 101 Ariz. 240, 418 P.2d 577 (1966).
¶8Therefore, I respectfully dissent to this decision for the foregoing reasons. This conviction should have been for the misdemeanor offense of USE of marihuana.