
    The People of the State of Illinois, Plaintiff-Appellee, v. David C. Ely, Defendant-Appellant.
    (No. 11688;
    Fourth District
    — December 9, 1971.
    John F. McNichols, of Defender Project, of Springfield, (Bruce L. Herr, of Defender Project, of counsel,) for appellant.
    John G. Satter, State’s Attorney, of Pontiac, for the People.
   PER CURIAM:

On November 13, 1970, the defendant was found guilty in a jury trial of the unlawful possession of marijuana, then classified as a narcotic drug under par. 22 — 3, et seq. of ch. 38, Ill. Rev. Stat. 1969. Following that trial the circuit court of Livingston County granted the motion of the defendant for a new trial. Such new trial resulted in another conviction for the same offense on October 5, 1971. Defendant was denied probation and was sentenced to 120 days at the Illinois State Penal Farm. The sentence imposed was under the new Cannabis Control Act of 1971, the sentencing procedure apparently in accord with the opinion of this court in People v. Bailey, 273 N.E.2d 74.

Subsequent to the filing of the opinion of this Court in Bailey, the Illinois Supreme Court, in People v. McCabe, 49 Ill.2d 338, rehearing denied November 24, 1971, held that the classification of marijuana as a narcotic drug under the prior statute was arbitrary and unconstitutional. This defendant was convicted for a violation- of that statute. In his dissenting opinion Mr. Chief Justice Underwood made reference to Bailey. The majority opinion holds however that the classification is unconstitutional, without reference to sentencing under the new Cannabis Control Act.

The motion for summary reversal is therefore well taken, the motion is allowed, and the judgment of the circuit court of Livingston County is reversed and the mandate of this Court is ordered to issue forthwith.

Judgment reversed.  