Balz v. State

Indiana Court of Appeals

Balz v. State

319 N.E.2d 650, 162 Ind. App. 347, 1974 Ind. App. LEXIS 839

CourtIndiana Court of Appeals

DecidedDecember 10, 1974

DocketNo. 2-874A204

StatusPublished

Cited by1 cases

This text of 319 N.E.2d 650 (Balz v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Balz v. State, 319 N.E.2d 650, 162 Ind. App. 347, 1974 Ind. App. LEXIS 839 (Ind. Ct. App. 1974).

Pincite

Opinion

Lybrook, J.

Defendant-appellant Balz challenges his conviction for sale of marijuana on the ground that at the time of his alleged unlawful conduct there was no statute in Indiana making possession or sale of marijuana a criminal act.

Balz was charged with violating the Dangerous Drug Act¹ by selling marijuana to a member of the Indianapolis Police Department on August 1, 1973. He argues that marijuana was deleted from those substances controlled by the Dangerous Drug Act by Acts 1973, P.L. 144, p. 754, which became effective on July 31, 1973. Balz further maintains that it was not until October 1, 1973, the date on which the Controlled Substances Act² became effective, that possession and/or sale of marijuana was again statutorily proscribed in Indiana.

In response, the State urges that although there appears to have been a lapse in the statutory proscription of sale of marijuana from July 31, 1973, to October 1, 1973, such is not the case. The State points out that under the Dangerous Drug Act, the definition of dangerous drug included “any substance which the state board of pharmacy, after reasonable notice and hearing, shall by promulgated rule determine has qualities similar to that of any dangerous drug.” The State [349]*349maintains that since the Board of- Pharmacy, pursuant to its rule-making power, had on June 26, 1973, issued Rule • 27 which declared marijuana to be a dangerous drug, possession and sale of marijuana remained unlawful during the above hiatus.

Although the State’s argument is not without merit, we find it unpersuasive in the case at bar. A close examination reveals that the above rule of the board of pharmacy was not mentioned or referred to at any point in the proceedings. Such a defect is fatal. State v. Jennings (1974), 262 Ind. 443, 317 N.E.2d 446.

Judgment reversed.

Robertson, P.J. and Lowdermilk, J., concur.

Note. — Reported at 319 N.E.2d 650.

Free access — add to your briefcase to read the full text and ask questions with AI

Lybrook, J.

Defendant-appellant Balz challenges his conviction for sale of marijuana on the ground that at the time of his alleged unlawful conduct there was no statute in Indiana making possession or sale of marijuana a criminal act.

Balz was charged with violating the Dangerous Drug Act¹ by selling marijuana to a member of the Indianapolis Police Department on August 1, 1973. He argues that marijuana was deleted from those substances controlled by the Dangerous Drug Act by Acts 1973, P.L. 144, p. 754, which became effective on July 31, 1973. Balz further maintains that it was not until October 1, 1973, the date on which the Controlled Substances Act² became effective, that possession and/or sale of marijuana was again statutorily proscribed in Indiana.

In response, the State urges that although there appears to have been a lapse in the statutory proscription of sale of marijuana from July 31, 1973, to October 1, 1973, such is not the case. The State points out that under the Dangerous Drug Act, the definition of dangerous drug included “any substance which the state board of pharmacy, after reasonable notice and hearing, shall by promulgated rule determine has qualities similar to that of any dangerous drug.” The State [349]*349maintains that since the Board of- Pharmacy, pursuant to its rule-making power, had on June 26, 1973, issued Rule • 27 which declared marijuana to be a dangerous drug, possession and sale of marijuana remained unlawful during the above hiatus.

Although the State’s argument is not without merit, we find it unpersuasive in the case at bar. A close examination reveals that the above rule of the board of pharmacy was not mentioned or referred to at any point in the proceedings. Such a defect is fatal. State v. Jennings (1974), 262 Ind. 443, 317 N.E.2d 446.

Judgment reversed.

Robertson, P.J. and Lowdermilk, J., concur.

Note. — Reported at 319 N.E.2d 650.

Cite This Page — Counsel Stack

Bluebook (online)

319 N.E.2d 650, 162 Ind. App. 347, 1974 Ind. App. LEXIS 839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/balz-v-state-indctapp-1974.

Opinion

Related

Cite This Page — Counsel Stack