State v. Reid, 37256
Decision Date | 13 May 1965 |
Docket Number | No. 37256,37256 |
Citation | 66 Wn.2d 243,401 P.2d 988 |
Court | Washington Supreme Court |
Parties | STATE of Washington, Respondent, v. Michaeleen Roberta REID, Appellant. |
Irving Paul, Jr., Seattle, for appellant.
Charles O. Carroll, Pros. Atty., David L. Williams, Deputy Pros. Atty., Seattle, for respondent.
This is an appeal by the defendant from the judgment and sentence entered upon her conviction of the possession of a narcotic without a prescription, in violation of RCW 69.33.230 and RCW 69.33.410. The two sections of the statute, when read together, make this crime a felony. Accordingly, the defendant was sentenced to serve a maximum term of twenty years in the state penitentiary under this statute.
The sole error and argument raised on this appeal is that the prosecutor has the discretion to charge either a felony or a misdemeanor on the same set of facts, and that this discretion is unlawful (unconstitutional) because it violates the equal protection clause of the U.S.Const. amend. XIV, and Const. art. 1, § 12. This contention is based on a comparison of the wording of RCW 69.33.230 and RCW 69.33.410 with the wording of RCW 69.32.080 ( ).
The exact wording of the pertinent part of the code sections involved is as follows:
'It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug, except as authorized in this chapter.' (Laws of 1959, ch. 27, p. 207, RCW 69.33.230.)
'Whoever violates any provision of this chapter shall, upon conviction, be fined not more than two thousand dollars and be imprisoned not less than two years.' (Laws of 1959, ch. 27, p. 219, RCW 69.33.410.)
(Laws of 1959, ch. 27, p. 198, RCW 69.32.080.) (Italics ours.)
A careful reading of the three sections shows that, under RCW 69.33.230 and 69.33.410, unlawful possession of a narcotic drug is a felony, whereas, under RCW 69.32.080, unlawful possession is only prima facie evidence of an intent to unlawfully use the narcotic, such unlawful use, itself, being only a gross misdemeanor.
It is appellant's position that the prosecutor is thus permitted to decide whether to be harsh or lenient on the same facts, namely the unlawful possession of a narcotic, using his own criteria to determine who shall be charged as felons and who shall be charged as gross misdemeanants. Appellant argues that the vesting of such discretion in the prosecutor is unconstitutional for the reasons stated in In re Olsen v. Delmore, 48 Wash.2d 545, 295 P.2d 324 (1956), and State v. Pirkey, 203 Or. 697, 281 P.2d 698 (1955).
The Washington case, In re Olsen v. Delmore, supra, was distinguished in State v. Boggs, 57 Wash.2d 484, 358 P.2d 124 (1961). The Oregon case, State v. Pirkey, supra, has been distinguished at least nine times on various grounds. 1 In State v. Powell, 212 Or. 684, 321 P.2d 333 (1958), the Oregon court considered two narcotics statutes, ORS 475.060 and ORS 474.170, one of which appeared to make the use of a false name in the obtaining of a narcotic a misdemeanor, and the other appeared to make the same act a felony. The court found, on close scrutiny, that the elements of the two crimes differed, and, therefore, State v. Pirkey, supra, was not applicable. This point was only collateral to the main question in that case, but the distinction recognized by the Oregon court is an important one.
We believe that both In re Olsen v. Delmore, supra, and State v. Pirkey, supra, are distinguishable on the grounds stated in State v. Reed, 34 N.J. 554, 170 A.2d 419 (1961). In that case the court was confronted with the same argument, in substance, as is raised by appellant in the present case. The statutes involved were also intended to provide control over illegal narcotics possession and use. In State v. Reed, supra at 570, 170 A.2d at 428, the New Jersey Supreme Court stated:
* * *
We believe that the distinction made by the New Jersey Supreme Court has merit. The crime specified in RCW 69.32.080 is the crime of illegal Use of a narcotic. The provision in that statute...
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