APPEAL from the Circuit Court of Boone County, the Hon. ALBERT
S. O'SULLIVAN, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendant was indicted in a two count indictment; count one being for possession of a narcotic drug, and count two being the unlawful sale of an hallucinogenic drug to a minor. He was tried by a jury and on July 10, 1970, his application for probation was denied and he was sentenced by the court to a period of six months on the charge of possession of marijuana in the amount of less than 2.5 grams, and was sentenced to 1-2 years on the charge of the sale of LSD to a minor, the two sentences to run concurrently.
The defendant herein has urged two grounds for reversal; the first being that the informer was not called to testify on the motion to suppress, and secondly, that the trial court erred in not suppressing the physical evidence seized during the arrest without a warrant. We do not find that it is necessary for us to rule on these points in the light of our decision herein.
• 1 While the defendant did not raise the issue of the constitutionality of the classification of marijuana (in the trial court referred to variously as "hashish" "hashis" (sic) and marijuana) as a narcotic drug, we find nevertheless that this case is controlled in part by the opinion of People v. McCabe Supreme Court Docket No. 42674, filed October, 1971; rehearing denied November 24, 1971; 49 Ill.2d 338 1971 which pertained to the unlawful sale of marijuana but is in violation of the same statutory provision as in the instant case. The Supreme Court there held that the classification of marijuana as a narcotic drug was "arbitrary and deprives the defendant of equal protection of the law." The judgment of conviction was reversed and not remanded.
Under the rule of McCabe, supra, we therefore reverse the conviction herein of the possession of marijuana.
• 2, 3 We find that where a defendant has been tried on two charges in the same trial and one of the charges is held no longer to constitute a crime under the then existing statute he cannot have had a fair trial as to the other charge, in this case, sale of an hallucinogenic drug to a minor. For the reasons indicated the judgment of conviction is reversed and remanded for new trial on the sale of an hallucinogenic drug to a minor.
MORAN, P.J., and ABRAHAMSON, J., concur.