(dissenting).
I dissent.
It is anyone’s guess what the legislature intended by its language in section 54-133 (b), B.C.M.1947, but it can be gen*294erally stated that it intended to give benefit to young violators so that their futures would not be destroyed by a felony conviction. I believe that it can be properly said that none of the legislators intended such a benefit to enure to a person of the accused’s position, a “pusher” or seller, as described within the Dangerous Drug Act of the 1969 Legislature.
. Admittedly the record made in the trial court in the presentence hearing is not a model for future cases, however, as I view the evidence adduced, after the appellant plead guilty to violating the Act, I find the evidence sufficient to move the trial judge’s discretionary power in committing the appellant to the state prison. Agreeing with appellant’s statutory definition of a presumption — “a deduction which the law expressly directs to be made from particular facts,” I feel the presumption calling for a deferred sentence can be overcome from the following:
1. Appellant agreed to make a $5 purchase for an alleged friend.
2. Appellant took with him to Missoula a friend who admits he was under a deferred sentence for drug use which could have resulted in the revocation of that deferred sentence and imprisonment in the state prison. Admittedly the appellant was not asked whether he knew his traveling companion was serving a deferred sentence, but such information was common knowledge to the entire community last spring when hearings were held, names were published, and families appeared before Judge Loble before the sentencing. It is impossible for me not to indulge in a presumption that appellant knew full well the status of his companion.
3. The only difficulty I could glean from the testimony that appellant had trouble finding a place to purchase the drugs was that they had to go to several houses before they found “someone home” and a purchase was made. The inference from this testimony to me, and I feel sure to Judge Fall, is that they knew of several places to go to find drugs.
*2954. The testimony of his 18-year-old traveling companion who had several months earlier plead guilty to the violation of the Act and was under a deferred sentence. His testimony is as follows:
“A. We found at one house there was somebody home.
“Q. And who was that? A. I believe his name was Mike Brown.
“Q. Did you recognize him? A. Yes, I had met him before.
“THE COURT: What was the name?
“THE WITNESS: Mike Brown.
“THE COURT: Mike Brown.
“Q. And under what circumstances had you met him before? A. I just met him before in his house.
“Q. Had Solomon been present on those previous occasions? A. Yes, he had at one.
“Q. Then what transpired? A. He bought some tablets.
“Q. By ‘he,’ meaning Solomon? A. Yes.
“Q. And what type of tablets did he buy? A. I don’t know what they were.”
The least that can be' gleaned from this testimony is that the traveling companion of Solomon knew Mike Brown, had met him before, and that on one of the previous occasions when he had met Mike Brown, Solomon had been present.
5. While no proof was put in by the state as to what the “white tablets” were, we do know from the appellant’s own plea that he was in possession of dangerous drugs when arrested. He plead guilty to the charge and no inference can be made that the “white tablets” were aspirin.
6. The cognizance of the trial judge to make a record to show why he took the action he did; admittedly it could and should have been amplified, but again it can be “presumed”' that Judge Pall was not totally ignorant of the facts and circumstances of the drug cases in the Helena community in the-spring of 1969. Judge Fall is one judge of a two judge district, he is in almost daily contact with Judge Loble and most *296certainly was aware of the history and the problems that arose in the spring of 1969.
7. Last, but not least, is the very nature of the offense charged. The appellant is not one of those who got caught giving or selling a stick or two of marihuana. He made a round trip of some 240 miles to purchase 31 y2 “lids” of LSD and what is described as a small quantity of marihuana. What he intended to do when he returned to Helena with his purchase should have been developed but had he not been caught ou the outskirts of the city, at least, assuming him an honest pusher, he would have put the $5 purchase in the hands of his friend.
The district courts and this Court have been given a difficult, to be charitable, statute to implement and if nothing comes from the majority holding it should be apparent to all that the next legislature should clarify the language of the statute.
In the meantime those charged with the enforcement of the Act should strive to make a full record of information of the parties involved in future cases so that this Court will have a-more complete record to work from.