State v. Berge , 109 N.H. 570 ( 1969 )

109 N.H. 570 (1969)

STATE
v.
RICHARD A. BERGE & a.

No. 5943.

Supreme Court of New Hampshire.

Argued September 3, 1969. Decided October 31, 1969.

George S. Pappagianis, Attorney General, and Henry F. Spaloss, Assistant Attorney General (Mr. Spaloss orally), for the State.

Bell & Kennedy (Mr. William H. Kennedy orally), for the defendants.

GRIMES, J.

The defendants were indicted on January 22, 1969, for unlawfully selling a narcotic drug, marijuana, in violation of RSA 318-A:2. There are three indictments against Prevost and one against Berge. At their arraignment and before a plea, they both moved to quash the indictments on the ground that RSA 318-A:21 II which establishes the penalty at a minimum of five years, also provides that "the imposition or execution of sentence shall not be suspended" and is therefore invalid as an unconstitutional encroachment upon the judicial power of the courts. The questions raised by the motions were transferred without rulings by Morris, J.

Although the defendants raise a constitutional question involving the separation of powers of our government, we do not need to reach that question in this case. By Laws of 1969, ch. 421, the legislative branch repealed RSA ch. 318-A and enacted RSA ch. 318-B (supp) in its place. The new legislation does not purport to impose mandatory minimum sentences nor to prohibit the courts from exercising their power to suspend sentences. In fact, the existence of that power is assumed, s. 28.

It is provided by Laws of 1969, 421:2 (RSA ch. 318-B (supp)) that as to offenses committed prior to the repeal of ch. RSA 318-A "when any punishment, penalty or forfeiture shall be mitigated by the provisions of RSA 318-B . . . such provisions may be extended and applied to any sentences under chapter 318-A pronounced after such repeal." Thus, since ch. 318-B (supp) is now effective and ch. 318-A has been repealed, neither the mandatory minimum sentence nor the prohibition against suspension of sentence will apply to the defendants who have not been tried and the constitutional question they raise has become moot.

Remanded.

All concurred.