(dissenting) :
I dissent.
All of the provisions of the Montana Dangerous Drug Act of 1969, sections 54-129 through 54-138, E.C.M.1947, became- effective July 1, 1969, some five months before the sales involved here.
In support of his position defendant relies upon several previous cases of this Court. State v. Smith, 135 Mont. 18, 334 P.2d 1099 and State v. Hood, 89 Mont. 432, 436, 298 P. 354.
In Hood, a case involving possession of cocaine, police officers went into a room occupied by defendant Hood where they *353found cocaine in several places and a dictionary on which was printed “the Property of Samuel C. Hood”. When the officers came into the room Hood rushed to the kitchen stove and threw something into the fire. Upon conviction for possession of cocaine, Hood appealed and this Court reversed the conviction because- the state failed to show defendant had conscious possession of the prohibited substance. The Court said:
“To justify a conviction of unlawful possession of a prohibited article, there must be proof of actual control and management of the thing prohibited.” (
Hood, a possession case and not a sale case, is cited in a recent opinion of this Court, State ex rel. Glantz v. District Court, 154 Mont. 132, 461 P.2d 193. Glantz involved an original proceeding before this Court in which an order to show cause was issued, and one of the issues considered was the constitutionality of the 1969 Montana Dangerous Drug Act. This Court found the Act constitutional. (See majority Opinion).
It is obvious from the cited portion of Giants in the majority Opinion that even though the statute does not specifically require that possession be knowingly, knowledge is an essential element of a possession charge. The same rationale applied to possession cases must be applied where a sale is involved.
Here, possession was firmly established by defendant’s own testimony. In State v. Trowbridge, Mont., 487 P.2d 530, 532, this Court, citing from a Colorado case, Petty v. People, 167 Colo. 240, 447 P.2d 217, said:
“ ‘However, a conviction for possession may be predicated upon circumstantial evidence. Mickens v. People, 148 Colo. 237, 365 P.2d 679. A conviction of illegal possession may be based upon evidence that the marijuana, while not found on the person of the defendant, was in a place under his dominion and control. [Citing cases] If possession is established, knowledge of the character of the drug and the fact that it is possessed can be inferred therefrom.’ ”
Here, we have a doctor of osteopathy who had practiced his *354profession, some 46 years. He testified that in the brown bottle of pills given Mm by Dr. Lindeberg there were quite a few tranquilizers and diet pills. He had given some of these tranquilizers to an individual at the county rest home. To believe that an osteopathic doctor with the above number of years of practice would make this argument and expect a jury to believe it, is beyond comprehension.
In a recent opinion of this Court, the first concerning the sale of dangerous drugs under the 1969 Montana Dangerous Drug Act, this Court considered both sections 54-131 and 54-132, R.C.M.1947, of that Act. In State v. Karathanos, 158 Mont. 461, 493 P.2d 326, defendant was found guilty of a sale where he was in lawful possession of the drugs. In that case, as here, defendant had no license to sell and did not come within the exceptions noted in section 54-131, R.C.M.1947, I believe Kara-thanos is controlling here.
I would affirm the decision of the district court.