DECEMBER 9, 1971.
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
DANIEL E. MAHNKE, DEFENDANT-APPELLANT.
APPEAL from the Circuit Court of Macon County; the Hon. ALBERT
G. WEBBER, III, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
The defendant was convicted in a jury trial in the circuit court of Macon County for the unlawful sale of marijuana. At the time of the offense and the conviction marijuana was classified as a narcotic drug under the provisions of Ill. Rev. Stat. 1969, par. 22-3, et seq. of ch. 38. Upon conviction the defendant was sentenced for a term of not less than 10 nor more than 12 years. This appeal is from the conviction and sentence.
In People v. McCabe, 49 Ill.2d 338, the Illinois Supreme Court held that the classification of marijuana in the Narcotic Drug Act above cited, under which the defendant was convicted, was arbitrary and that such classification deprives the defendant of equal protection of the law. Such unconstitutional classification required reversal of the conviction. Petition for rehearing was denied in McCabe on November 24, 1971.
In People v. Hudson, 50 Ill.2d 1, the Illinois Supreme Court considered the case of the defendant convicted of the unlawful sale of marijuana, as was the defendant here, and in relying upon McCabe reversed the conviction. Such result is required in this case.
The judgment of the circuit court of Macon County is reversed and the mandate of this Court is ordered to issue forthwith.
TRAPP, P.J., and SMITH, J., concur.
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