State v. McIntyre

188 S.E.2d 304 (1972)

281 N.C. 304

STATE of North Carolina v. Jack Arnold McINTYRE.

No. 107.

Supreme Court of North Carolina.

May 10, 1972.

*305 Atty. Gen. Robert Morgan, Associate Atty. Henry E. Poole, Raleigh, for the State.

John C. B. Regan, III, Lumberton, for defendant appellee.

SHARP, Justice:

The one question presented is whether defendant's possession of marihuana on 21 March 1971 is punishable as a felony under G.S. § 90-111 (Supp.1969) or as a misdemeanor under G.S. § 90-95(e) (Supp. 1971). The question was decisively answered by our decision in State v. Harvey, 281 N.C. 1, 187 S.E.2d 706: Defendant's crime is punishable as a felony.

In Harvey, as in this case, the defendant was indicted, tried and convicted under G. S. § 90-88 (1965), which made illegal the possession of any quantity of marihuana. Also in effect at the time the offenses were committed was the proviso, which was incorporated into G.S. § 90-111 by N.C.Sess.Laws, Ch. 970, § 3 (1969). This proviso made the possession of more than one gram of marihuana a felony, punishable by not more than five years in the penitentiary.

*306 Both this case and the Harvey case were in the appellate division on 1 January 1972, the date on which the North Carolina Controlled Substances Act, G.S. §§ 90-86 to -113.9 (Supp.1971), supplanted the Uniform Narcotic Drug Act, G.S. §§ 90-87 to -111.2 (1965) as amended (Supp.1969). The Controlled Substances Act specifically provided, however, that it would apply only to violations of law "following January 1, 1972," and that prosecutions for any violations of law occurring prior to that date should not be affected by its provisions. G.S. § 90-113.7 (Supp.1971).

We held in Harvey that the savings provision of the Controlled Substances Act (G.S. § 90-113.7) made the decision in State v. Pardon, 272 N.C. 72, 157 S.E.2d 698, inapplicable to any offense committed prior to 1 January 1972 and that, as to such offenses, the Narcotic Drug Act continued in full force and effect.

Upon the authority of Harvey, the decision of the Court of Appeals is reversed, and the cause is remanded to that court with directions that the judgment of the Superior Court be reinstated and affirmed.

Reversed.