APPEAL from the Circuit Court of Pike County; the Hon. CECIL
J. BURROWS, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Defendants John L. Simpson and David R. Waggoner were indicted for a violation of section 5(c) of the Cannabis Control Act (Ill. Rev. Stat. 1971, ch. 56 1/2, par. 705(e)), which makes it unlawful to knowingly deliver more than 500 grams of a substance containing cannabis. After a bench trial, defendants were found guilty as charged. They were each sentenced to the Department of Corrections for an indeterminate term of 1 to 3 years. Defendants appeal from their judgment of conviction.
On appeal, defendants urge three issues: (1) that the Cannabis Control Act is unconstitutional; (2) or, in the alternative, that if the statute is constitutional, then their guilt was not established beyond a reasonable doubt; and (3) their jury waiver was not voluntarily given.
On September 1, 1972, defendants were arrested by several Illinois Bureau of Investigation (IBI) agents for unlawful delivery of more than 500 grams of substance containing cannabis. On September 5, 1972, the State's Attorney executed an "information" charging defendants, and on that same date, an "arraignment" was held thereon. Therein defendants were found indigent, counsel was appointed, and defendants pleaded not guilty to the charge. On October 17, 1972, defendants filed a motion for discovery, which was granted by the court. The State was ordered to comply with the motion by November 28, 1972. However, on that date, the State filed a motion for continuance of discovery order. The basis for this motion was that defendants had not been indicted for the charges pending, nor had they waived indictment; and that under Supreme Court Rule 411 (Ill. Rev. Stat. 1971, ch. 110A, par. 411), the criminal discovery rules do not become applicable until after indictment or information, and they will not operate prior to or in the course of a preliminary hearing. The State requested that the continuance be given until such time defendants are indicted by a grand jury or they waive indictment. The record reveals that this motion was never ruled upon by the court.
On December 27, 1972, defendants were indicted. An arraignment on the indictment was held on January 5, 1973, and defendants again pleaded not guilty to the charges. At the conclusion of the hearing, the State filed a motion for discovery and a request for notice of alibi defense.
Defendants' trial was set for February 13, 1973. On February 6, 1973, the State answered defendants' request for a discovery that originally had been filed on October 17, 1972. Therein the State disclosed the names of six witnesses all of whom were IBI agents listed certain evidence held by the State, and had appended thereto an IBI prosecutive summary, two IBI investigative memorandums, two surveillance memorandums, IBI arrest data sheets on both defendants, and a report by Kenneth Vail, an IBI chemist, concerning the chemical content of the two brown paper bags taken from defendants when arrested.
On February 13, defendants' trial was reset for February 20. On the 20th, defendants requested another continuance to be set until the next jury setting. The basis of the motion was that the State had not complied with discovery until February 6, that discovery was voluminous, and defense counsel had had inadequate time to prepare a sufficient defense. Counsel noted that all of the State's witnesses were located in Springfield. Moreover, counsel had not been able to recover the contents of the two paper sacks for the purpose of having it analyzed by an independent expert. After counsel's argument, the following colloquy took place:
"THE COURT: The number of this case is 72-CF-12, and it has been on a while and of course the Court has continued the jury setting one week for the specific purpose of affording the defendants more time. Unless there is some definite prejudice, I see none, the motion will not be allowed.
THE COURT: Gentlemen, are you ready to proceed on People vs Simpson and Waggoner?
MR. LOWRY: We are ready, your Honor.
MR. HADDOCK: Your Honor, again we are not ready to proceed and have had no opportunity to contact any of the State's witnesses. Probably to preserve that point for appeal it will be necessary to go through the mechanics of the trial. At this time on behalf of Mr. Simpson and Mr. Waggoner I wish to explain to them what the situation is and see what they wish to do. My problem is they want to waive a jury trial in order to give opportunities to consult with the witnesses. I think it puts them in a poor position; in order to preserve my points they have to go to trial. [Emphasis supplied.]
THE COURT: I have no particular specific showing that there is any prejudice that will accrue to these defendants and the motion is overruled. And we are ready to start the trial.
MR. HADDOCK: Your Honor, I ask for a few minutes to consult ...