Illegal possession of mercury consists of possessing more than one pound of mercury without also possessing a bona fide bill of sale or other instrument in writing relating to the mercury in possession stating the name and address of the seller, the name and address of the purchaser, the date of the sale, the amount sold and the price paid therefor; provided however, this section shall not be applicable to any person engaged in the business of mining, processing mercury, or to any person using mercury as an integral part of a tool, instrument or device in his business, or to a law enforcement officer in discharge of his duties.

Whoever commits illegal possession of mercury is guilty of a fourth degree felony.

History: 1953 Comp., § 54-5-17, enacted by Laws 1967, ch. 88, § 1.

Cross references. — For evidentiary rule relating to the use of presumptions in criminal cases, see Rule 11-302 NMRA.

Section is not an unreasonable restriction of property rights in violation of due process requirements. State v. Davis, 1969-NMCA-047, 80 N.M. 347, 455 P.2d 851, cert. denied, 80 N.M. 316, 454 P.2d 973.

Reasonable regulation of possession. — As physical characteristics of mercury are such that there is no way to identify a particular lot of mercury, it is reasonably necessary to regulate possession of mercury in order to prevent theft, and the regulation of possession, as limited in this section, is reasonable, and does not violate the requirements of due process. State v. Davis, 1969-NMCA-047, 80 N.M. 347, 455 P.2d 851, cert. denied, 80 N.M. 316, 454 P.2d 973.

While it is true that this section prohibits a formerly legal possession, the act prohibited is intentional possession of mercury in those instances covered hereunder. State v. Davis, 1969-NMCA-047, 80 N.M. 347, 455 P.2d 851, cert. denied, 80 N.M. 316, 454 P.2d 973.

Section neither destroys presumption of innocence nor shifts burden of proof. State v. Davis, 1969-NMCA-047, 80 N.M. 347, 455 P.2d 851, cert. denied, 80 N.M. 316, 454 P.2d 973.

State required to prove possession. — The presumption of innocence in this section is not destroyed by an inference of guilt based either on a suspicion or an unproven fact as it requires the state to prove possession of a specified item (mercury) in a stated amount (more than one pound). State v. Davis, 1969-NMCA-047, 80 N.M. 347, 455 P.2d 851, cert. denied, 80 N.M. 316, 454 P.2d 973.

Along with absence of bill of sale. — The state has the burden of proving that the defendant did not possess a bona fide bill of sale or other written instrument relating to the mercury in defendant's possession; this negative may be proved by the unexplained absence of a bill of sale or instrument in writing from which it may be (but is not required to be) inferred that defendant did not possess such an item, such inference being an evidentiary matter. State v. Cranford, 1971-NMCA-008, 82 N.M. 331, 481 P.2d 410.

Locus of bill of sale. — The bill of sale or other written instrument need not be on defendant's person in order to be possessed by the defendant. State v. Davis, 1969-NMCA-047, 80 N.M. 347, 455 P.2d 851, cert. denied, 80 N.M. 316, 454 P.2d 973.

Intent essential. — Criminal intent, an intent to possess the mercury, is required for violation of this section. State v. Davis, 1969-NMCA-047, 80 N.M. 347, 455 P.2d 851, cert. denied, 80 N.M. 316, 454 P.2d 973.

Evidence sufficient. — Evidence that, according to defendant, 60 pounds of mercury found in his closet was not supposed to be there, along with evidence that defendant acknowledged his guilt to investigating officer, permitted the inference that defendant did not possess a bona fide bill of sale or other written instrument relating to the mercury in his possession. State v. Cranford, 1971-NMCA-008, 82 N.M. 331, 481 P.2d 410.