State v. Reiley, 56314

• Decision Date: 10 January 1972
• Docket Number: No. 1,No. 56314,56314,1
• Citation: 476 S.W.2d 473
• Parties: STATE of Missouri, Respondent, v. Tom REILEY, Appellant
• Court: Missouri Supreme Court

Page 473

476 S.W.2d 473

STATE of Missouri, Respondent, v.Tom REILEY, Appellant.

No. 56314.

Supreme Court of Missouri, Division No. 1.

Jan. 10, 1972.

Motion for Rehearing or to Transfer to Court En Banc Denied

Feb. 22, 1972.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for the respondent.

Lloyd S. Hellman, Kansas City, for appellant.

HIGGINS, Commissioner.

Tom Reiley, charged with sale of a narcotic drug, Cannabis Sativa, for the price of $40, was convicted of possession of said drug.The jury was unable to agree on defendant's punishment; the court duly assessed his punishment at three years' imprisonment and rendered judgment and sentence accordingly. §§ 195.010,195.020, and195.200, RSMo 1969; Criminal Rule 27.03, V.A.M.R.

According to the statements of fact submitted by both appellant and respondent, and supported by the transcript, the state adduced evidence to show that defendant, a college student, possessed a narcotic drug which he offered for sale and sold to two police officers whom he mistook for college students.The drug was represented to be hashish of excellent quality, opium treated, and a good buy at $8 per gram.The officers purchased five grams for $40.Analysis showed the purchased material to be hashish, opium test negative.Hashish is known as the resin extract of Cannabis Sativa.

The jury was instructed on sale of a narcotic drug, the lesser offense of possession of a narcotic drug, and the defense of entrapment; conviction was for possession.

This appeal is devoted wholly to constitutional grounds, to wit: that those sections of the Narcotic Drug Act, Chapter 195, RSMo 1969, under which he was convicted, are unconstitutional, void, and unenforceable as they relate to marijuana in that they extract and permit the infliction of cruel and unusual punishment and deny and deprive defendant of equal protection of law.Appellant contends also that the sentence was excessive and an abuse of the court's discretion.

The amended information upon which this case was tried was filed October 16, 1970; trial commenced October 19, 1970; and the verdict was returned October 20, 1970.This appeal, duly taken, was briefed by appellantMay 28, 1971, and by respondentAugust 13, 1971; and was docketed, argued and submitted on September 27, 1971.On August 31, 1971, prior to the submission, appellant filed 'Alternative Motion For Reduction of Sentence' based upon an amendment of Chapter 195 by House Bill 69, enacted by the 76th General Assembly (signed by the governor July 31, 1971), effective September 28, 1971.He contended that according to the new statute, (1) his conviction should be reduced to a misdemeanor by this court, and (2) his punishment should be reduced proportionately by this court; or in the alternative that the cause be remanded to the circuit court for further consideration of the conviction and assessment of punishment under the recently enacted statute.On September 13, 1971, appellant's said motion was ordered taken with the case and is now for disposition, which, as will be seen, may obviate this appeal in its present posture.

Section 195.200.RSMo 1969, authorized the court to assess punishment in defendant's case up to twenty years'...