(dissenting) — Pleading the particular section of the statute under which an information or indictment is brought, while perhaps timesaving, does no more than plead a conclusion of law and amounts simply to 'a helpful surplusage. The sale of marijuana by appellant was on May 9, 1969, the date of his conviction, a felony under RCW 69.33.410 of the Uniform Narcotic Drug Act. When crimes involving marijuana were removed from the Uniform Narcotic Drug Act and placed under the dangerous drug act, Laws of 1969, Ex. Ses., ch. 256, § 7(13), RCW 69.40, this same offense, i.e., the unlawful sale of marijuana remained a felony. RCW 69.40.070 (5). The crime was not expunged from the books; the legislature did not make the sale of marijuana lawful. Both the sale of marijuana or possession of it with intent to sell remained punishable as felonies. RCW 69.40.070(5). And the legislature did not require that the state, in charging the unlawful sale of marijuana, plead either its evidence or conclusions of law respecting the crime charged.
Both the information and the judgment of guilt in this case are good. All that should or remains to be done under State v. Zornes, 78 Wn.2d 9, 475 P.2d 109 (1970), is remand the cause for resentencing under RCW 69.40.070(5). I think no authority is necessary to establish the obvious *553proposition that, if an information charges a crime, as defined by statute, the statutory section under which it is laid need not be pleaded. The defendant was and is still guilty of the offense charged: the unlawful sale of marijuana.
I consider it both unwarranted in law and an unconstitutional trespass upon the power of the executive branch of government for the court, as it has done in other marijuana cases, to order this case dismissed. See State v. Zornes, supra; State v. Williams, 78 Wn.2d 459, 475 P.2d 100 (1970); State v. Spencer, 78 Wn.2d 549, 477 P.2d 639 (1970). Therefore, I dissent.