State v. Jennings

317 N.E.2d 446, 262 Ind. 443, 1974 Ind. LEXIS 325

Opinions

Hunter, J.

This is an appeal by the State of Indiana following the trial court’s dismissal of an affidavit charging the appellee with possession of marijuana. The trial court dismissed the charge on the grounds of lack of jurisdiction, and this Court entertains jurisdiction pursuant to AP. 4 (A) (5). Appellee’s motion to dismiss was grounded on the contention that “at the time of the commission of the alleged offense, there was no statute of the State of Indiana making it criminal to possess or sell marijuana.” We affirm.

The State concedes that at the time of filing the charging affidavit, there was no criminal statute in effect making the •possession of marijuana a crime.¹ However, the State urges that because the Board of Pharmacy, pursuant to its rule-making power, had declared marijuana to be a dangerous drug, it follows that this determination is sufficient to support the charging affidavit. We disagree.

The trial court properly dismissed the affidavit for lack of jurisdiction. There being no statutory offense alleged, it was incumbent on the State to allege that the appellee violated the promulgated rule of the Board of Pharmacy. Thus, violation of the rule was the only basis upon which appellee could be charged. Yet, nowhere in the record before us does the Board of Pharmacy rule appear. The affidavit was clearly defective in that it alleged no criminal offense.

Judgment affirmed.

DeBruler and Prentice, JJ., concur; Givan, J., dissents with opinion in which Arterburn, C.J., concurs.

Footnotes

1

. Previous subsections of the Dangerous Drug Act were repealed by Public Law 144 on July 26, 1973. The Controlled Substances Act, Public Law 335, did not become law until its stated effective date of October 1, 1973.