
    [No. 64-41148-2.
    Division Two.
    February 3, 1970.]
    
      In the Matter of the Application for a Writ of Habeas Corpus of Richard L. Potts, Petitioner, v. B. J. Rhay, as Superintendent of the State Penitentiary, Respondent.
    
    
      Richard L. Potts, pro se.
    
      Slade Gorton, Attorney General, and Lee D. Rickabaugh, Assistant, for respondent.
   Per Curiam.

Petitioner has been found guilty in Superior Court for Pierce County on an information charging that on or about September 30, 1968, he did “unlawfully and feloniously illegally possess a narcotic drug, to wit: Marijuana (Cannabis).” His petition for writ of habeas corpus raises but a single issue. He contends that he was unable to tell whether he was being charged with a felony under RCW 69.33 (Uniform Narcotic Drug Act), or a misdemeanor under RCW 69.40 (dangerous drugs and poisons) ; and that since the prosecuting attorney was vested with discretion as to which offense might be charged under the same set of facts, in this case possession of marijuana, exercise of such discretion violated the equal protection clause of the fourteenth amendment to the United States Constitution and article 1, section 12 of the Washington State Constitution.

After careful review of the record we are constrained to conclude that the prosecuting attorney had no such discretion and the petitioner was properly convicted of felonious possession of marijuana on November 14, 1968. Accordingly, his petition for writ of habeas corpus is denied.  