The opinion
BRETT, Judge
(concurring in part and dissenting in part).
Insofar as this conviction is to be affirmed, I concur in that part that modifies the sentence imposed.' However, notwithstanding the provisions of 63 O.S.1971, § 2-601, I believe this sentence should be modified to one year imprisonment, as presently provided for the first conviction for possession of marihuana, since it was not a final judgment when the law was changed.
I agree also, under the circumstances the officers acted within reason, when the defendant reached under his car seat. At that moment they had no reason to believe he was reaching for his drivers license. He could have been reaching for a weapon, which provided the special circumstances referred to in Lawson v. State, supra.
It strikes me that the finding of a marihuana “roach”, one quarter of an inch long, more nearly indicates proof of “the use of marihuana,” than it does possession. One quarter of an inch is approximately six millimeters, which doesn’t represent much marihuana. The record also reflects that the seeds were not absolutely proved to be marihuana seeds. The bureau expert did not test them, except to examine them under a microscope; and he related that other seeds do resemble marihuana seeds.
With reference to Part IV of the majority opinion concerning the defendant’s question of jurisdiction, jurisdiction of the subject matter may be raised at any time, even on appeal. Therefore, I shall reaffirm my position expressed in Schaffer v. Green, supra, in that I believe the Schaffer decision is incorrect; and I feel no special compulsion at this time to change my position, except to admit that the majority of this Court has decided the 1910 Statute, 21 O.S. § 152, is applicable.
Therefore, I concur in that part of the decision which modifies the sentence, but I respectfully dissent to the question of jurisdiction.